UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 6-K/A
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT
TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF
1934
For the month of February 2015
(Amendment to report filed February 18,
2015)
Commission File Number 001-33042
ROSETTA GENOMICS LTD.
(Translation of registrant’s name
into English)
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10 Plaut Street, Science Park |
Rehovot 76706, Israel |
(Address of Principal Executive Offices) |
Indicate by check mark whether the registrant files or will
file annual reports under cover of Form 20-F or Form 40-F:
Form 20-F þ Form
40-F ¨
Indicate by check mark if the registrant is submitting the Form
6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ¨
Indicate by check mark if the registrant is submitting the Form
6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ¨
Explanatory Note
This Amendment to the report on Form 6-K,
which was originally filed on February 18, 2015 (the “Original Form 6-K”), is being filed solely for the purpose of
filing certain exhibits hereto. For convenience, the Original Form 6-K is being amended and restated in its entirety.
Rosetta Genomics Ltd.
On February 18, 2015, Rosetta Genomics Ltd.
(“Rosetta”) entered into a Controlled Equity OfferingSM Sales Agreement (the “Agreement”) with
Cantor Fitzgerald & Co., as sales agent (“Cantor”). Under the Agreement, Rosetta may offer and sell ordinary shares,
par value NIS 0.6 per share, from time to time through Cantor, acting as agent. Rosetta has filed a prospectus supplement relating
to the offer and sale, from time to time, of its ordinary shares having an aggregate offering price of up to $14,400,000 (the “Shares”)
pursuant to the Agreement. Rosetta intends to use the net proceeds from the offering, if any, for its operations and for other
general corporate purposes, including, but not limited to, repayment or refinancing of future indebtedness or other future corporate
borrowings, working capital, intellectual property protection and enforcement, capital expenditures, investments, acquisitions
or collaborations, research and development and product development.
Rosetta is not obligated to sell any Shares
pursuant to the Agreement. Subject to the terms and conditions of the Agreement, Cantor will use commercially reasonable efforts,
consistent with its normal trading and sales practices and applicable state and federal law, rules and regulations and the rules
of The NASDAQ Capital Market, to sell Shares from time to time based upon Rosetta's instructions, including any price, time or
size limits or other customary parameters or conditions Rosetta may impose.
Under the Agreement, Cantor may sell Shares
by any method deemed to be an “at-the-market” offering as defined in Rule 415 promulgated under the Securities Act
of 1933, as amended, including sales made directly on The NASDAQ Capital Market, on any other existing trading market for the Shares
or to or through a market maker. In addition, pursuant to the terms and conditions of the Agreement and subject to the instructions
of Rosetta, Cantor may sell Shares by any other method permitted by law, including in privately negotiated transactions.
The Agreement will terminate upon the earlier
of (i) the sale of all ordinary shares subject to the Agreement, or (ii) termination of the Agreement as otherwise permitted therein.
The Agreement may be terminated by Cantor or Rosetta at any time upon ten days' notice to the other party, or by Cantor at any
time in certain circumstances, including the occurrence of a material adverse change in Rosetta.
Rosetta will pay Cantor a commission of
up to 5.0% of the aggregate gross proceeds from each sale of Shares and has agreed to provide Cantor with customary indemnification
and contribution rights.
The foregoing summary of the Agreement does
not purport to be complete and is qualified in its entirety by reference to the full text of the Agreement, a copy of which is
filed as Exhibit 10.1 hereto and incorporated herein by reference. The Agreement contains representations and warranties that the
parties made to, and solely for the benefit of, the other in the context of all of the terms and conditions of the Agreement and
in the context of the specific relationship between the parties. The provisions of the Agreement, including the representations
and warranties contained therein, are not for the benefit of any party other than the parties to the Agreement and are not intended
as a document for investors and the public to obtain factual information about the current state of affairs of the parties to those
documents and agreements. Rather, investors and the public should look to other disclosures contained in Rosetta’s filings
with the SEC.
The opinion of Rosetta's counsel regarding
the validity of the Shares that may be issued pursuant to the Agreement is also filed herewith as Exhibit 5.1.
The Shares will be issued pursuant to Rosetta's
previously filed and effective Registration Statement on Form F-3 (File No. 333-185338), the base prospectus dated December 19,
2012, filed as part of such Registration Statement, and the prospectus supplement dated February 18, 2015, filed by Rosetta with
the Securities and Exchange Commission. This Report on Form 6-K shall not constitute an offer to sell or the solicitation of an
offer to buy Shares, nor shall there be any sale of the Shares in any state or jurisdiction in which such offer, solicitation or
sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
Cautionary Statement Regarding Forward-Looking
Statements
This Report on Form 6-K contains forward-looking
statements. Forward-looking statements include statements concerning plans, objectives, goals, strategies, future events or performance,
and underlying assumptions and other statements that are other than statements of historical facts, such as statements regarding
the sale of Shares under the Agreement, if any, the intended use of proceeds, as well as termination of the Agreement. These statements
are subject to uncertainties and risks including, but not limited to the risks identified in reports filed from time to time with
the SEC. All such forward-looking statements are expressly qualified by these cautionary statements and any other cautionary statements
which may accompany the forward-looking statements. In addition, we disclaim any obligation to update any forward-looking statements
to reflect events or circumstances after the date hereof.
The information contained in this Report
(including the exhibits hereto) is hereby incorporated by reference into the Company’s Registration Statements on Form F-3,
File Nos. 333-163063, 333-171203, 333-172655, 333-177670 and 333-185338.
Exhibits
Exhibit |
|
Number |
Description of Exhibit |
5.1 |
Opinion of Raved Magriso Benkel & Co. |
10.1 |
Controlled Equity OfferingSM Sales Agreement, dated February 18, 2015, by and between Rosetta Genomics Ltd. and Cantor Fitzgerald & Co. |
23.1 |
Consent of Raved Magriso Benkel & Co. (included in Exhibit 5.1). |
Signatures
Pursuant to the requirements of the Securities
Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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ROSETTA GENOMICS LTD. |
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Date: February 18, 2015 |
By: |
/s/ Oded Biran |
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Oded Biran
Chief Legal Officer and Corporate Secretary |
EXHIBIT 5.1
Date: February 18, 2015
Reference: ר85/10
To:
Rosetta Genomics Ltd.
10 Plaut Street
Rehovot 76706
Israel
Dear Sir/Madam,
Re: Rosetta Genomics Ltd.
1. We
have acted as Israeli legal counsel to Rosetta Genomics Ltd., a company organized under the laws of the State of Israel (the “Company”),
in connection with a prospectus supplement dated February 18, 2015 (the "Prospectus Supplement"), for the issuance
of ordinary shares of nominal value NIS 0.6 each, of the Company having an aggregate offering price of up to $14,400,000 (the “Shares”),
pursuant to the Controlled Equity Offering Sales Agreement dated as of February 18, 2015 (the “Sales Agreement”)
by and between the Company and Cantor Fitzgerald & Co. (the “Agent”), a registration statement on Form F−3,
Registration No. 333-185338 (the "Registration Statement") filed by the Company with the Securities and Exchange
Commission (the “Commission”) on December 7, 2012, the base prospectus dated December 19, 2012 (the "Base
Prospectus") and the Prospectus Supplement.
2. In
connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such
agreements, certificates, and other statements of corporate officers and other representatives of the Company, and other documents
provided to us by the Company, and such other documents and corporate records, questions of law and other matters as we deemed
necessary or appropriate in order to enable us to express the opinions hereinafter set forth. As to matters of fact relevant to
our opinion, we have relied exclusively, without independent investigation or verification, upon the Sales Agreement, the other
documents referred to hereinabove, and upon matters of fact contained in the representations and warranties contained in such documents.
|
Yoram Raved
David Magriso
Joseph Benkel
Ofer Zuzovsky
Shmuel Galinka
Einat Weidberg
Zohar Barzilai
Gilad Shapiro
Eli Cohen
Ofer Larisch*
Nirit Avtalion
Calanit Bar
Nir Shamri
Moshe Mizrachi
Amir On
Amir Frankl
Miri Elia-Kush
Doron Kviatek
Orly Katzir
Dekel Vaizer
Rinat Dvash
Asaf Shir
Tzahi Harel
Sandra Manor-Richter
Itshak Cohen-Yehonatan
Maya Koubi Bara-nes
Oded Navon
Inbal Raz
Shiri Shapiro
Hilla Lev
Gal Nussbaum
Tamar Marelly
Shay Fitusy
Eyal Ron
Adi Buki
Hila Rinot
Sivan Noymark-Zuriel
Sigal Rozen Rechav**
Eyal Konyak
Anat Keidar
Liran Welcman
Michael Vitan
Chen Nusel
Rotem Fishman Negrin
Yoav Manor
Or Asiskovich
Ilit Vardi
Ortal Elegrabli
Omer Weiss
Sapir Even Hen-Bahar
________
Orly Tal - Of Counsel**
*
Admitted - NewYork Bar & England and Wales
** CPA
|
| 3. | In rendering an opinion on the matters hereinafter set forth, we have assumed the authenticity
and completeness of all documents submitted to us as originals, the conformity to original documents of all photocopies, conformed
copies, email or facsimiles submitted to us, the genuineness of all signatures and the legal capacity and due authenticity of all
persons executing such documents. We have assumed the same to have been properly given and to be accurate, and we have assumed
the truth of all facts communicated to us by the Company, and have assumed that all consents, minutes and protocols of meetings
of the Company's board of directors and shareholders which have been provided to us are true, accurate and have been properly prepared
in accordance with the Company's incorporation documents and all applicable laws. |
| 4. | In connection herewith, we have assumed that, other than with respect to the Company, all of the
documents referred to in this opinion letter have been duly authorized by, have been duly executed and delivered by, and constitute
the valid, binding and enforceable obligations of, all of the parties to such documents, all of the signatories to such documents
have been duly authorized and all such parties are duly organized and validly existing and have the power and authority (corporate
or other) to execute, deliver and perform such documents. |
| 5. | Except to the extent expressly set forth herein, we have not undertaken any independent investigation
to determine the existence or absence of any fact, nor examined the records of courts, administrative tribunals, or any other similar
entity in connection with our opinions expressed herein, and no inference as to our knowledge of the existence or absence of any
fact should be drawn from our representation of the Company or the rendering of the opinions set forth below. |
| 6. | This opinion is limited to the matters stated herein and no opinion is implied or may be inferred
beyond the matters expressly stated herein. |
| 7. | We are members of the Israel Bar Association and we express no opinion as to any matter relating
to the laws of any jurisdiction other than the laws of the State of Israel and have not, for the purpose of giving this opinion,
made any investigation of the laws of any jurisdiction other than the laws of the State of Israel. The opinions set forth herein
are made as of the date hereof and are subject to, and may be limited by, future changes in the factual matters set forth herein,
and we undertake no duty to advise you of the same. The opinions expressed herein are based upon the law in effect (and published
or otherwise generally available) on the date hereof, and we assume no obligation to revise or supplement these opinions should
such law be changed by legislative action, judicial decision or otherwise. In rendering our opinions, we have not considered, and
hereby disclaim any opinion as to, the application or impact of any laws, cases, decisions, rules or regulations of any jurisdiction,
court or administrative agency other than those of the State of Israel. |
| 8. | Based upon and subject to the foregoing, and subject to the assumptions, comments, qualifications,
limitations and exceptions stated herein, we are of the opinion that following the issuance and delivery of the Shares and the
receipt by the Company of the consideration for the Shares, all as contemplated by the Sales Agreement and a duly authorized Placement
Notice (as defined in the Sales Agreement), the Shares will be validly issued, fully paid and non-assessable. |
| 9. | The opinions set forth above are further subject to the following exceptions, limitations and qualifications:
(i) the effect of bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter
in effect relating to or affecting the rights and remedies of creditors and the availability of remedies (regardless of whether
such enforceability is considered in a proceeding in equity or at law); (ii) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore
may be brought; (iii) the unenforceability under certain circumstances under law or court decisions of provisions providing for
the indemnification of, or contribution to, a party with respect to a liability where such indemnification or contribution may
be limited by Israeli or United States federal or state securities laws and the public policy underlying such laws; (iv) the remedies
of specific performance and injunctive and other forms of injunctive relief may be subject to equitable defenses; (v) the effect
of statute of limitations and (v) we express no opinion concerning the enforceability of any waiver of rights or defenses with
respect to stay, extension or usury laws. |
| 10. | We hereby consent to the filing of this opinion with the United States Securities and Exchange
Commission as an exhibit to the Company's 6-K to be dated February 18, 2015, which is incorporated by reference in the Registration
Statement and the reference to our firm in the section of the Prospectus Supplement entitled "Legal Matters". By giving
our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended or the rules and regulations promulgated thereunder. |
| 11. | This opinion shall be governed by the laws of the State of Israel, and exclusive jurisdiction with
respect thereto under all and any circumstances, and under all and any proceedings shall be vested only and exclusively with the
courts of Tel Aviv in the State of Israel. This opinion is rendered to you subject to, based and in reliance on your agreement
to comply with the exclusive choice of law and jurisdiction contained herein and to refrain under all and any circumstances from
initiating any proceedings or taking any legal action relating to this opinion outside of the State of Israel. |
| 12. | This opinion is being delivered to you solely for your information in connection with the above
matter and may not be relied upon in any manner by any other person and is not to be used, circulated, quoted or otherwise referred
to for any other purpose without our express written permission. |
|
Sincerely yours,
/s/ Raved, Magriso, Benkel & Co.
Advocates & Notaries
|
EXHIBIT 10.1
ROSETTA GENOMICS LTD.
Ordinary Shares
(par value NIS 0.6 per share)
Controlled Equity OfferingSM
Sales Agreement
February 18, 2015
Cantor Fitzgerald & Co.
499 Park Avenue
New York, NY 10022
Ladies and Gentlemen:
Rosetta Genomics Ltd.,
a corporation formed under the laws of the State of Israel (the “Company”), confirms its agreement (this
“Agreement”) with Cantor Fitzgerald & Co. (the “Agent”), as follows:
1. Issuance and
Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the
conditions set forth herein, it may issue and sell through the Agent, ordinary shares, par value NIS 0.6 per share (the “Ordinary
Shares”); provided however, that in no event shall the Company issue or sell through the Agent such number of Ordinary
Shares (the “Placement Shares”) that (a) exceeds the number or dollar amount of Ordinary Shares registered
pursuant to the effective Registration Statement (as defined below) pursuant to which the offering will be made, (b) exceeds the
number or dollar amount of Ordinary Shares allowed to be sold under Form F-3 (including Instruction I.B.5. thereof), (c) exceeds
the number of authorized but unissued Ordinary Shares or (d) exceeds the number or dollar amount of Ordinary Shares for which the
Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b), (c) and (d), the “Maximum Amount”).
Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth
in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility
of the Company and that Agent shall have no obligation in connection with such compliance. The issuance and sale of Placement Shares
through Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective
by the Securities and Exchange Commission (the “Commission”) on December 19, 2012, although nothing in
this Agreement shall be construed as requiring the Company to use the Registration Statement to issue any Placement Shares.
The Company has filed,
in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities
Act”), with the Commission a registration statement on Form F-3 (File No. 333-185338), including a base prospectus,
relating to certain securities, including Ordinary Shares to be issued from time to time by the Company, and which incorporates
by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act
of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”). The Company has prepared
a prospectus supplement to the base prospectus included as part of the registration statement, which prospectus supplement relates
to the Placement Shares to be issued from time to time by the Company (the “Prospectus Supplement”).
The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of such registration statement,
as supplemented by the Prospectus Supplement, relating to the Placement Shares to be issued from time to time by the Company. The
Company may file one or more additional registration statements from time to time that will contain one or more base prospectuses
with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all
documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as
defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part
of such registration statement(s) pursuant to Rule 430B of the Securities Act, is herein called the “Registration
Statement.” The base prospectus or base prospectuses, including all documents incorporated therein by reference,
included in the Registration Statement, as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which
such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant
to Rule 424(b) under the Securities Act, together with the then issued Issuer Free Writing Prospectus(es) (as defined below),
is herein called the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus
or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein,
and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to
the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any
document with the Commission deemed to be incorporated by reference therein.
Any reference herein
to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer
to and include the documents, if any, incorporated by reference therein (the “Incorporated Documents”),
including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any
reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration
Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or
the date of the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated
therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment
or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data
Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system when used by the
Commission (collectively, “EDGAR”).
2. Placements.
Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”),
it will notify the Agent by email notice (or other method mutually agreed to in writing by the parties) of the number of Placement
Shares, the time period during which sales are requested to be made, any limitation on the number of Placement Shares that may
be sold in any one day and any minimum price below which sales may not be made (a “Placement Notice”),
the form of which is attached hereto as Schedule 1. The Placement Notice shall originate from any of the individuals from the Company
set forth on Schedule 3 (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed
to each of the individuals from the Agent set forth on Schedule 3, as such Schedule 3 may be amended from time to time. The Placement
Notice shall be effective unless and until (i) the Agent declines to accept the terms contained therein for any reason, in
its sole discretion, in which case the Agent shall, within two Business Days, notify the Company (by email notice or other method
mutually agreed to by the parties), (ii) the entire amount of the Placement Shares thereunder have been sold, (iii) the
Company suspends or terminates the Placement Notice or (iv) this Agreement has been terminated under the provisions of Section
12. The amount of any discount, commission or other compensation to be paid by the Company to Agent in connection with the
sale of the Placement Shares shall be calculated in accordance with the terms set forth in Schedule 2. It is expressly acknowledged
and agreed that neither the Company nor the Agent will have any obligation whatsoever with respect to a Placement or any Placement
Shares unless and until the Company delivers a Placement Notice to the Agent and the Agent does not decline such Placement Notice
pursuant to the terms set forth above, and then only upon the terms specified therein and herein. In the event of a conflict between
the terms of this Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control.
3. Sale of Placement
Shares by Agent. Subject to the provisions of Section 5(a), the Agent, for the period specified in the Placement Notice,
will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal
laws, rules and regulations and the rules of the NASDAQ Capital Market (the “Exchange”), to sell the
Placement Shares up to the amount specified, and otherwise in accordance with the terms of such Placement Notice. The Agent will
provide written confirmation to the Company (including by email correspondence) no later than the opening of the Trading Day (as
defined below) immediately following the Trading Day to each of the individuals set forth on Schedule 3 on which it has made sales
of Placement Shares hereunder setting forth the number of Placement Shares sold on such day, the compensation payable by the Company
to the Agent pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company,
with an itemization of the deductions made by the Agent (as set forth in Section 5(b)) from the gross proceeds that it receives
from such sales. Subject to the terms of the Placement Notice, the Agent may sell Placement Shares by any method permitted by law
deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation
sales made directly on the Exchange, on any other existing trading market for the Ordinary Shares or to or through a market maker.
Subject to the terms of a Placement Notice, the Agent may also sell Placement Shares by any other method permitted by law, including
but not limited to in privately negotiated transactions; provided that in the event that the purchaser of Placement Shares in such
privately negotiated transaction(s) will hold, following such purchase, 5% or more of the Company’s issued share capital
or of the voting rights in the Company, then, upon and as a condition to such issuance, such purchaser shall deliver to the Company
an executed copy of an undertaking towards the Office of the Chief Scientists of the Israeli Ministry of Industry, Trade and Labor
(the “OCS”) substantially in the form attached hereto as Exhibit 3. “Trading Day”
means any day on which Ordinary Shares is traded on the Exchange.
4. Suspension
of Sales. The Company or the Agent may, upon notice to the other party in writing (including by email correspondence to each
of the individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged by any
of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable
facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 3), suspend
any sale of Placement Shares (a “Suspension”); provided, however, that such suspension shall not affect
or impair any party’s obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice.
While a Suspension is in effect any obligation under Sections 7(l), 7(m), and 7(n) with respect to the delivery of certificates,
opinions, or comfort letters to the Agent, shall be waived, provided, however, that such waiver shall not apply for the Representation
Date (defined below) occurring on the date that the Company files its annual report on Form 20-F. Each of the parties agrees that
no such notice under this Section 4 shall be effective against any other party unless it is made to one of the individuals
named on Schedule 3 hereto, as such Schedule may be amended from time to time.
5. Sale and Delivery
to the Agent; Settlement.
(a) Sale of Placement
Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, upon the Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement Shares
described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Agent,
for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading
and sales practices and applicable law and regulations to sell such Placement Shares up to the amount specified, and otherwise
in accordance with the terms of such Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance that
the Agent will be successful in selling Placement Shares, (ii) the Agent will incur no liability or obligation to the Company or
any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Agent to use its commercially
reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Placement
Shares as required under this Agreement and (iii) the Agent shall be under no obligation to purchase Placement Shares on a principal
basis pursuant to this Agreement, except as otherwise agreed by the Agent and the Company.
(b) Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement
Shares will occur on the third (3rd) Trading Day (or such earlier day as is industry practice for regular-way trading)
following the date on which such sales are made (each, a “Settlement Date”). The Agent shall notify the
Company in writing (including by email correspondence to each of the individuals set forth on Schedule 3) of each sale of Placement
Shares no later than the opening of the Trading Day immediately following the Trading Day on which it has made sales of Placement
Shares hereunder. The amount of proceeds to be delivered to the Company on a Settlement Date against receipt of the Placement Shares
sold (the “Net Proceeds”) will be equal to the aggregate sales price received by the Agent, after deduction
for (i) the Agent’s commission, discount or other compensation for such sales payable by the Company pursuant to Section
2 hereof, and (ii) any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales.
(c) Delivery
of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically
transfer the Placement Shares being sold by crediting the Agent’s or its designee’s account (provided the Agent shall
have given the Company written notice of such designee at least one Trading Day prior to the Settlement Date) at The Depository
Trust Company through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed
upon by the parties hereto which in all cases shall be freely tradable, transferable, registered shares in good deliverable form.
On each Settlement Date, the Agent will deliver the related Net Proceeds in same day funds to an account designated by the Company
on, or prior to, the Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults in
its obligation to deliver Placement Shares on a Settlement Date, the Company agrees that in addition to and in no way limiting
the rights and obligations set forth in Section 10(a) hereto, it will (i) hold the Agent harmless against any loss, claim,
damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default
by the Company or its transfer agent (if applicable) and (ii) pay to the Agent any commission, discount, or other compensation
to which it would otherwise have been entitled absent such default.
(d) Denominations;
Registration. Certificates for the Placement Shares, if any, shall be in such denominations and registered in such names
as the Agent may request in writing at least one full Business Day (as defined below) before the Settlement Date. The certificates
for the Placement Shares, if any, will be made available by the Company for examination and packaging by the Agent in The City
of New York not later than noon (New York time) on the Business Day prior to the Settlement Date.
(e) Limitations
on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares
if, after giving effect to the sale of such Placement Shares, the aggregate gross sales proceeds of Placement Shares sold pursuant
to this Agreement would exceed the lesser of (A) together with all sales of Placement Shares under this Agreement, the Maximum
Amount, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the
amount authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors and notified
to the Agent in writing. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares pursuant
to this Agreement at a price lower than the minimum price authorized from time to time by the Company’s board of directors
and notified to the Agent in writing. Further, under no circumstances shall the Company cause or permit the aggregate offering
amount of Placement Shares sold pursuant to this Agreement to exceed the Maximum Amount.
(f) Agent’s
Obligations Regarding Israeli Securities Laws. Notwithstanding anything to the contrary herein, the agent undertakes that it
will not offer in a privately negotiated transaction any Placement Shares to offerees in Israel, other than to investors listed
in the first addendum to the Israeli Securities Law, 5728-1968 (the “Addendum”) and subject to the terms
thereof; provided further that as a prerequisite to sale in a privately negotiated transaction of Placement Shares to such Israeli
investors, each of them shall be required to submit written confirmation to the Agent and the Company that such investor (a) (x)
falls within the scope of the Addendum, (y) is aware of the implications of him falling within the scope of the Addendum, and (z)
agrees to it; and (b) is acquiring the Placement Shares being offered to it for investment for its own account or, if applicable,
for investment for clients who are institutional investors. In addition, the Agent will not engage in any form of solicitation,
advertising or any other action which constitutes an offer to the public under the Israeli Securities Law in connection with the
transactions contemplated hereby.
6. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with Agent that as of the date of this Agreement
and as of each Applicable Time (as defined below):
(a) Registration
Statement and Prospectus. The Company and the transactions contemplated by this Agreement meet the requirements for and comply
with the conditions for the use of Form F-3 under the Securities Act. The Company is a “foreign private issuer,” as
such term is defined in Rule 3b-4 under the Exchange Act. The Registration Statement has been filed with the Commission and has
been declared effective by the Commission under the Securities Act. The Prospectus Supplement will name the Agent as the agent
in the section entitled “Plan of Distribution.” The Company has not received, and has no notice of, any order of the
Commission preventing or suspending the use of the Registration Statement, or threatening or instituting proceedings for that purpose.
The Registration Statement and the offer and sale of Placement Shares as contemplated hereby meet the requirements of Rule 415
under the Securities Act and comply in all material respects with said Rule. Any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration
Statement have been so described or filed. Copies of the Registration Statement, the Prospectus, and any such amendments or supplements
and all documents incorporated by reference therein that were filed with the Commission on or prior to the date of this Agreement
have been delivered, or are available through EDGAR, to Agent and its counsel. The Company has not distributed and, prior to the
later to occur of each Settlement Date and completion of the distribution of the Placement Shares, will not distribute any offering
material in connection with the offering or sale of the Placement Shares other than the Registration Statement and the Prospectus
and any Issuer Free Writing Prospectus (as defined below) to which the Agent has consented (such consent not to be unreasonably
withheld, conditioned or delayed). The Ordinary Shares are registered pursuant to Section 12(b) of the Exchange Act and are currently
listed on the Exchange under the trading symbol “ROSG.” The Company has taken no action designed to, or likely to have
the effect of, terminating the registration of the Ordinary Shares under the Exchange Act, delisting the Ordinary Shares from the
Exchange, nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration
or listing (except as set forth in the Registration Statement and the Prospectus). To the Company’s knowledge, it is in compliance
with all applicable listing requirements of the Exchange. The Company has no reason to believe that it will not in the foreseeable
future continue to be in compliance with all such listing and maintenance requirements.
(b) No Misstatement
or Omission. The Registration Statement, when it became or becomes effective, and the Prospectus, and any amendment or supplement
thereto, on the date of such Prospectus or amendment or supplement, conformed and will conform in all material respects with the
requirements of the Securities Act. At each Settlement Date, the Registration Statement and the Prospectus, as of such date, will
conform in all material respects with the requirements of the Securities Act. The Registration Statement, when it became or becomes
effective, did not, and will not, contain an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading. The Prospectus and any amendment and supplement thereto,
on the date thereof and at each Applicable Time (defined below), did not or will not include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading. The documents incorporated by reference in the Prospectus or any Prospectus Supplement did not, and
any further documents filed and incorporated by reference therein will not, when filed with the Commission, contain an untrue statement
of a material fact or omit to state a material fact required to be stated in such document or necessary to make the statements
in such document, in light of the circumstances under which they were made, not misleading. The foregoing shall not apply to statements
in, or omissions from, any such document made in reliance upon, and in conformity with, information furnished to the Company by
Agent specifically for use in the preparation thereof.
(c) Conformity
with Securities Act and Exchange Act. The Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or any
amendment or supplement thereto, and the documents incorporated by reference in the Registration Statement, the Prospectus or any
amendment or supplement thereto, when such documents were or are filed with the Commission under the Securities Act or the Exchange
Act or became or become effective under the Securities Act, as the case may be, conformed or will conform in all material respects
with the requirements of the Securities Act and the Exchange Act, as applicable.
(d) Financial Information.
The consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the Prospectus
and the Issuer Free Writing Prospectuses, if any, together with the related notes and schedules, present fairly, in all material
respects, the consolidated financial position of the Company and the Subsidiaries (as defined below) as of the dates indicated
and the consolidated results of operations, cash flows and changes in stockholders’ equity of the Company for the periods
specified and have been prepared in compliance with the requirements of the Securities Act and Exchange Act and in conformity with
GAAP (as defined below) applied on a consistent basis during the periods involved except as set forth in the related notes; the
other financial and statistical data with respect to the Company and the Subsidiaries (as defined below) contained or incorporated
by reference in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses, if any, are accurately and
fairly presented and prepared on a basis consistent with the financial statements and books and records of the Company; there are
no financial statements (historical or pro forma) that are required to be included or incorporated by reference in the Registration
Statement, or the Prospectus that are not included or incorporated by reference as required; the Company and the Subsidiaries (as
defined below) do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations),
not described in the Registration Statement (excluding the exhibits thereto), and the Prospectus; and all disclosures contained
or incorporated by reference in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses, if any, regarding
“non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply with
Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable.
(e) Conformity
with EDGAR Filing. The Prospectus delivered to Agent for use in connection with the sale of the Placement Shares pursuant to
this Agreement will be identical to the versions of the Prospectus created to be transmitted to the Commission for filing via EDGAR,
except to the extent permitted by Regulation S-T.
(f) Organization.
The Company and each of its Subsidiaries (as defined below) are, and will be, duly organized, validly existing as a corporation
and in good standing under the laws of their respective jurisdictions of organization. The Company and each of its Subsidiaries
(as defined below) are, and will be, duly licensed or qualified as a foreign corporation for transaction of business and in good
standing under the laws of each other jurisdiction in which their respective ownership or lease of property or the conduct of their
respective businesses requires such license or qualification, and have all corporate power and authority necessary to own or hold
their respective properties and to conduct their respective businesses as described in the Registration Statement and the Prospectus,
except where the failure to be so qualified or in good standing or have such power or authority would not, individually or in the
aggregate, have a material adverse effect or would reasonably be expected to have a material adverse effect on or affecting the
assets, business, operations, earnings, properties, condition (financial or otherwise), prospects, stockholders’ equity or
results of operations of the Company and the Subsidiaries (as defined below) taken as a whole, or prevent or materially interfere
with consummation of the transactions contemplated hereby (a “Material Adverse Effect”). The Company
has not been designated as a “breaching company” by the Registrar of Companies of the State of Israel.
(g) Subsidiaries.
The subsidiaries set forth on Schedule 4 (collectively, the “Subsidiaries”), are the Company’s
only significant subsidiaries (as such term is defined in Rule 1-02 of Regulation S-X promulgated by the Commission). Except as
set forth in the Registration Statement and in the Prospectus, the Company owns, directly or indirectly, all of the equity interests
of the Subsidiaries free and clear of any lien, charge, security interest, encumbrance, right of first refusal or other restriction,
and all the equity interests of the Subsidiaries are validly issued and are fully paid, nonassessable and free of preemptive and
similar rights. No Subsidiary is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making
any other distribution on such Subsidiary’s capital stock, from repaying to the Company any loans or advances to such Subsidiary
from the Company or from transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary
of the Company.
(h) No Violation
or Default. Neither the Company nor any of its Subsidiaries is (i) in violation of its charter or by-laws or similar organizational
documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries
are subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator
or governmental or regulatory authority, except, in the case of each of clauses (ii) and (iii) above, for any such violation or
default that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. To the Company’s
knowledge, no other party under any material contract or other agreement to which it or any of its Subsidiaries is a party is in
default in any respect thereunder where such default would have a Material Adverse Effect.
(i) No Material
Adverse Change. Subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus
and the Free Writing Prospectuses, if any (including any document deemed incorporated by reference therein), there has not been
(i) any Material Adverse Effect or the occurrence of any development that the Company reasonably expects will result in a Material
Adverse Effect, (ii) any transaction which is material to the Company and the Subsidiaries taken as a whole, (iii) any obligation
or liability, direct or contingent (including any off-balance sheet obligations), incurred by the Company or any Subsidiary, which
is material to the Company and the Subsidiaries taken as a whole, (iv) any material change in the capital stock (other than the
grant of additional options under the Company’s existing stock option plans, or changes in the number of outstanding Ordinary
Shares of the Company due to the issuance of shares upon the exercise or conversion of securities exercisable for, or convertible
into, Ordinary Shares outstanding on the dates referred to in the Registration Statement and the Prospectus) or outstanding long-term
indebtedness of the Company or any of its Subsidiaries or (v) any dividend or distribution of any kind declared, paid or made on
the capital stock of the Company or any Subsidiary, other than in each case above in the ordinary course of business or as otherwise
disclosed in the Registration Statement or Prospectus (including any document deemed incorporated by reference therein).
(j) Capitalization.
The issued and outstanding shares of capital stock of the Company have been validly issued, are fully paid and nonassessable and,
other than as disclosed in the Registration Statement or the Prospectus, are not subject to any preemptive rights, rights of first
refusal or similar rights. The Company has an authorized, issued and outstanding capitalization as set forth in the Registration
Statement and the Prospectus as of the dates referred to therein (other than the grant of additional options under the Company’s
existing stock option plans, or changes in the number of outstanding Ordinary Shares of the Company due to the issuance of shares
upon the exercise or conversion of securities exercisable for, or convertible into, Ordinary Shares outstanding on the dates referred
to in the Registration Statement and the Prospectus) and such authorized capital stock conforms to the description thereof set
forth in the Registration Statement and the Prospectus. The description of the securities of the Company in the Registration Statement
and the Prospectus is complete and accurate in all material respects. Except as disclosed in or contemplated by the Registration
Statement or the Prospectus, as of the date referred to therein, the Company does not have outstanding any options to purchase,
or any rights or warrants to subscribe for, or any securities or obligations convertible into, or exchangeable for, or any contracts
or commitments to issue or sell, any shares of capital stock or other securities.
(k) Authorization;
Enforceability. The Company has full legal right, power and authority to enter into this Agreement and perform the transactions
contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a legal, valid and binding
agreement of the Company enforceable in accordance with its terms, except to the extent that (i) enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general
equitable principles and (ii) the indemnification and contribution provisions may be limited by federal or state securities laws
or public policy considerations in respect thereof.
(l) Authorization
of Placement Shares. The Placement Shares, when issued and delivered pursuant to the terms approved by the board of directors
of the Company against payment therefor as provided herein, will be duly and validly authorized and issued and fully paid and nonassessable,
free and clear of any pledge, lien, encumbrance, security interest or other claim, including any statutory or contractual preemptive
rights, resale rights, rights of first refusal or other similar rights, and will be registered pursuant to Section 12 of the Exchange
Act. The Placement Shares, when issued, will conform in all material respects to the description thereof set forth in or incorporated
into the Prospectus.
(m) No Consents
Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental
or regulatory authority is required for the execution, delivery and performance by the Company of this Agreement, the issuance
and sale by the Company of the Placement Shares, except for such consents, approvals, authorizations, orders and registrations
or qualifications as may be required (i) under applicable state securities laws, (ii) by the by-laws and rules of the Financial
Industry Regulatory Authority (“FINRA”) or the Exchange or (iii) by the rules and regulations of the
OCS, in connection with the sale of the Placement Shares by the Agent.
(n) No Preferential
Rights. Except as set forth in the Registration Statement and the Prospectus, (i) no person, as such term is defined in
Rule 1-02 of Regulation S-X promulgated under the Securities Act (each, a “Person”), has the right, contractual
or otherwise, to cause the Company to issue or sell to such Person any Ordinary Shares or shares of any other capital stock or
other securities of the Company (other than upon the exercise of options or warrants to purchase Ordinary Shares or upon the exercise
of options or vesting of other awards that may be granted from time to time under the Company’s stock plans), (ii) no
Person has any preemptive rights, resale rights, rights of first refusal, or any other rights (whether pursuant to a “poison
pill” provision or otherwise) to purchase any Ordinary Shares or shares of any other capital stock or other securities of
the Company, (iii) no Person has the right to act as an underwriter or as a financial advisor to the Company in connection
with the offer and sale of the Ordinary Shares, and (iv) no Person has the right, contractual or otherwise, to require the
Company to register under the Securities Act any Ordinary Shares or shares of any other capital stock or other securities of the
Company, or to include any such shares or other securities in the Registration Statement or the offering contemplated thereby,
whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Placement Shares as contemplated
thereby or otherwise.
(o) Independent
Public Accounting Firm. Kost Forer Gabbay & Kasierer (a Member of Ernst & Young Global) (the “Accountant”),
whose report on the consolidated financial statements of the Company is filed with the Commission as part of the Company’s
most recent Annual Report on Form 20-F filed with the Commission and incorporated by reference into the Registration Statement
and the Prospectus, are and, during the periods covered by their report, were an independent registered public accounting firm
within the meaning of the Securities Act and the Public Company Accounting Oversight Board (United States). To the Company’s
knowledge, the Accountant is not in violation of the auditor independence requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley
Act”) with respect to the Company.
(p) Enforceability
of Agreements. All agreements between the Company and third parties expressly referenced in the Prospectus are legal, valid
and binding obligations of the Company enforceable in accordance with their respective terms, except to the extent that (i) enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally
and by general equitable principles and (ii) the indemnification provisions of certain agreements may be limited by federal
or state securities laws or public policy considerations in respect thereof.
(q) No Litigation.
Except as set forth in the Registration Statement or the Prospectus, there are no legal, governmental or regulatory actions, suits
or proceedings pending, nor, to the Company’s knowledge, any legal, governmental or regulatory audits or investigations,
to which the Company or a Subsidiary is a party or to which any property of the Company or any of its Subsidiaries is the subject
that, individually or in the aggregate, if determined adversely to the Company or any of its Subsidiaries, would reasonably be
expected to have a Material Adverse Effect or materially and adversely affect the ability of the Company to perform its obligations
under this Agreement; to the Company’s knowledge, no such actions, suits or proceedings are threatened or contemplated by
any governmental or regulatory authority or threatened by others; and (i) there are no current or pending legal, governmental
or regulatory audits or investigations, actions, suits or proceedings that are required under the Securities Act to be described
in the Prospectus that are not so described; and (ii) there are no contracts or other documents that are required under the
Securities Act to be filed as exhibits to the Registration Statement that are not so filed.
(r) Consents and
Permits. Except as disclosed in the Registration Statement and the Prospectus, the Company and its Subsidiaries have made all
filings, applications and submissions required by, possesses and is operating in compliance with, all approvals, licenses, certificates,
certifications, clearances, consents, grants, exemptions, marks, notifications, orders, permits and other authorizations issued
by, the appropriate federal, state or foreign governmental or regulatory authorities (including, without limitation, the United
States Food and Drug Administration (the “FDA”), the United States Drug Enforcement Administration or
any other foreign, federal, state, provincial, court or local government or regulatory authorities including self-regulatory organizations
engaged in the regulation of clinical trials, pharmaceuticals, biologics or biohazardous substances or materials) necessary for
the ownership or lease of their respective properties or to conduct its businesses as described in the Registration Statement and
the Prospectus (collectively, “Permits”), except for such Permits the failure of which to possess, obtain
or make the same would not reasonably be expected to have a Material Adverse Effect; the Company and its Subsidiaries are in compliance
with the terms and conditions of all such Permits, except where the failure to be in compliance would not reasonably be expected
to have a Material Adverse Effect; all of the Permits are valid and in full force and effect, except where any invalidity, individually
or in the aggregate, would not be reasonably expected to have a Material Adverse Effect; and neither the Company nor any of its
Subsidiaries has received any written notice of proceedings relating to the limitation, revocation, cancellation, suspension, modification
or non-renewal of any such Permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Effect, and has any reason to believe that any such license, certificate, permit or authorization
will not be renewed in the ordinary course.
(s) Regulatory
Filings. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of its Subsidiaries
has failed to file with the applicable regulatory authorities (including, without limitation, the FDA, or any foreign, federal,
state, provincial or local governmental or regulatory authority performing functions similar to those performed by the FDA) any
required filing, declaration, listing, registration, report or submission, except for such failures that, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect; except as disclosed in the Registration Statement
and the Prospectus, all such filings, declarations, listings, registrations, reports or submissions were in compliance with applicable
laws when filed and no deficiencies have been asserted by any applicable regulatory authority with respect to any such filings,
declarations, listings, registrations, reports or submissions, except for any deficiencies that, individually or in the aggregate,
would not have a Material Adverse Effect.
(t) Intellectual
Property. Except as disclosed in the Registration Statement and the Prospectus, the Company and its Subsidiaries own, possess,
license or have other rights to use all foreign and domestic patents, patent applications, trade and service marks, trade and service
mark registrations, trade names, copyrights, licenses, inventions, trade secrets, technology, Internet domain names, know-how and
other intellectual property (collectively, the “Intellectual Property”), necessary for the conduct of
their respective businesses as now conducted except to the extent that the failure to own, possess, license or otherwise hold adequate
rights to use such Intellectual Property would not, individually or in the aggregate, have a Material Adverse Effect. Except as
disclosed in the Registration Statement and the Prospectus (i) there are no rights of third parties to any such Intellectual Property
owned by the Company and its Subsidiaries; (ii) to the Company’s knowledge, there is no infringement by third parties of
any such Intellectual Property; (iii) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding
or claim by others challenging the Company’s and its Subsidiaries’ rights in or to any such Intellectual Property,
and the Company is unaware of any facts which could form a reasonable basis for any such action, suit, proceeding or claim; (iv)
there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the
validity or scope of any such Intellectual Property; (v) there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others that the Company and its Subsidiaries infringe or otherwise violate any patent, trademark,
copyright, trade secret or other proprietary rights of others; (vi) to the Company’s knowledge, there is no third-party U.S.
patent or published U.S. patent application which contains claims for which an Interference Proceeding (as defined in 35 U.S.C.
§135) has been commenced against any patent or patent application described in the Prospectus as being owned by or licensed
to the Company; and (vii) the Company and its Subsidiaries have complied with the terms of each agreement pursuant to which Intellectual
Property has been licensed to the Company or such Subsidiary, and all such agreements are in full force and effect, except, in
the case of any of clauses (i)-(vii) above, for any such infringement by third parties or any such pending or threatened suit,
action, proceeding or claim as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect. The grants and other benefits received by the Company from the OCS under the Israeli Law for the Encouragement of Research
and Development in Industry, 1984 are fully and accurately reflected in the Registration Statement and the Prospectus and the Company
has complied with all the requirements and terms of such grants and other benefits except for any failure which, individually or
in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(u) [Intentionally
omitted.]
(v) Market Capitalization.
At the time the Registration Statement was originally declared effective, and at the time the Company’s most recent Annual
Report on Form 20-F was filed with the Commission, the Company met the then applicable requirements for the use of Form F-3 under
the Securities Act, including but not limited to Instruction I.B.5 of Form F-3. As of the date of this Agreement, the aggregate
market value of the outstanding voting and non-voting common equity (as defined in Securities Act Rule 405) of the Company
held by persons other than affiliates of the Company (pursuant to Securities Act Rule 144, those that directly, or indirectly through
one or more intermediaries, control, or are controlled by, or are under common control with, the Company) (the “Non-Affiliate
Shares”), was equal to at least $43.2 million (calculated by multiplying (x) the highest price at which the
common equity of the Company closed on the Exchange within 60 days of the date of this Agreement times (y) the number of Non-Affiliate
Shares). The Company is not a shell company (as defined in Rule 405 under the Securities Act) and has not been a shell company
for at least 12 calendar months previously and if it has been a shell company at any time previously, has filed current Form 10
information (as defined in Instruction I.B.5 of Form F-3) with the Commission at least 12 calendar months previously reflecting
its status as an entity that is not a shell company.
(w) No Material
Defaults. Neither the Company nor any of the Subsidiaries is in default on any installment on indebtedness for borrowed money
or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would reasonably be expected
to have a Material Adverse Effect. The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since
the filing of its last Annual Report on Form 20-F, indicating that it (i) has failed to pay any dividend or sinking fund installment
on preferred stock or (ii) has defaulted on any installment on indebtedness for borrowed money or on any rental on one or
more long-term leases, which defaults, individually or in the aggregate, would reasonably be expected to have a Material Adverse
Effect.
(x) Certain Market
Activities. Neither the Company, nor any of the Subsidiaries, nor any of their respective directors, officers or controlling
persons has taken, directly or indirectly, any action designed, or that has constituted or might reasonably be expected to cause
or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Placement Shares.
(y) Broker/Dealer
Relationships. Neither the Company nor any of the Subsidiaries or any related entities (i) is required to register as
a “broker” or “dealer” in accordance with the provisions of the Exchange Act or (ii) directly or indirectly
through one or more intermediaries, controls or is a “person associated with a member” or “associated person
of a member” (within the meaning set forth in the FINRA Manual).
(z) No Reliance.
The Company has not relied upon the Agent or legal counsel for the Agent for any legal, tax or accounting advice in connection
with the offering and sale of the Placement Shares.
(aa) Taxes.
The Company and each of its Subsidiaries have filed all U.S. federal, Israeli, state, local and foreign tax returns which have
been required to be filed and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become due
and are not being contested in good faith, except where the failure to so file or pay would not have a Material Adverse Effect.
Except as otherwise disclosed in or contemplated by the Registration Statement or the Prospectus, no tax deficiency has been determined
adversely to the Company or any of its Subsidiaries which has had, or would reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect. The Company has no knowledge of any federal, state or other governmental tax deficiency,
penalty or assessment which has been or might be asserted or threatened against it which would have a Material Adverse Effect.
The Company is an “Approved Enterprise” under the Israeli Law for the Encouragement of Capital Investments, 1959.
(bb) Title to Real
and Personal Property. Except as set forth in the Registration Statement or the Prospectus, the Company and its Subsidiaries
have good and marketable title in fee simple to all items of real property owned by them, good and valid title to all personal
property described in the Registration Statement or Prospectus as being owned by them that are material to the businesses of the
Company or such Subsidiary, in each case free and clear of all liens, encumbrances and claims, except those that (i) do not materially
interfere with the use made and proposed to be made of such property by the Company and any of its Subsidiaries or (ii) would not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. Any real or personal property described
in the Registration Statement or Prospectus as being leased by the Company and any of its Subsidiaries is held by them under valid,
existing and enforceable leases, except those that (A) do not materially interfere with the use made or proposed to be made of
such property by the Company or any of its Subsidiaries or (B) would not be reasonably expected, individually or in the aggregate,
to have a Material Adverse Effect. Each of the properties of the Company and its Subsidiaries complies with all applicable codes,
laws and regulations (including, without limitation, building and zoning codes, laws and regulations and laws relating to access
to such properties), except if and to the extent disclosed in the Registration Statement or Prospectus or except for such failures
to comply that would not, individually or in the aggregate, reasonably be expected to interfere in any material respect with the
use made and proposed to be made of such property by the Company and its Subsidiaries or otherwise have a Material Adverse Effect.
None of the Company or its subsidiaries has received from any governmental or regulatory authorities any notice of any condemnation
of, or zoning change affecting, the properties of the Company and its Subsidiaries, and the Company knows of no such condemnation
or zoning change which is threatened, except for such that would not reasonably be expected to interfere in any material respect
with the use made and proposed to be made of such property by the Company and its Subsidiaries or otherwise have a Material Adverse
Effect, individually or in the aggregate.
(cc) Environmental
Laws. Except as set forth in the Registration Statement or the Prospectus, the Company and its Subsidiaries (i) are in
compliance with any and all applicable federal, state, local and foreign laws, rules, regulations, decisions and orders relating
to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, “Environmental Laws”); (ii) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses as described
in the Registration Statement and the Prospectus; and (iii) have not received notice of any actual or potential liability
for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants,
except, in the case of any of clauses (i), (ii) or (iii) above, for any such failure to comply or failure to receive required permits,
licenses, other approvals or liability as would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(dd) Disclosure
Controls. The Company and each of its Subsidiaries maintain systems of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles
and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general
or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The Company’s internal control over financial
reporting is effective and the Company is not aware of any material weaknesses in its internal control over financial reporting
(other than as set forth in the Prospectus). Since the date of the latest audited financial statements of the Company included
in the Prospectus, there has been no change in the Company’s internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting (other than
as set forth in the Prospectus). The Company has established disclosure controls and procedures (as defined in Exchange Act Rules
13a-15 and 15d-15) for the Company and designed such disclosure controls and procedures to ensure that material information relating
to the Company and each of its Subsidiaries is made known to the certifying officers by others within those entities, particularly
during the period in which the Company’s Annual Report on Form 20-F or Reports on Form 6-K, as the case may be, is being
prepared. The Company’s certifying officers have evaluated the effectiveness of the Company’s controls and procedures
as of a date within 90 days prior to the filing date of the Form 20-F for the fiscal year most recently ended (such date, the “Evaluation
Date”). The Company presented in its Form 20-F for the fiscal year most recently ended the conclusions of the certifying
officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date
and the disclosure controls and procedures are effective. Since the Evaluation Date, there have been no significant changes in
the Company’s internal controls (as such term is defined in Item 307(b) of Regulation S-K under the Securities Act) or, to
the Company’s knowledge, in other factors that could significantly affect the Company’s internal controls.
(ee) Sarbanes-Oxley.
There is and has been no failure on the part of the Company or, to the Company’s knowledge, any of the Company’s directors
or officers, in their capacities as such, to comply in all material respects with any applicable provisions of the Sarbanes-Oxley
Act and the rules and regulations promulgated thereunder. Each of the principal executive officer and the principal financial officer
of the Company (or each former principal executive officer of the Company and each former principal financial officer of the Company
as applicable) has made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports,
schedules, forms, statements and other documents required to be filed by it or furnished by it to the Commission. For purposes
of the preceding sentence, “principal executive officer” and “principal financial officer” shall have the
meanings given to such terms in the Sarbanes-Oxley Act.
(ff) Finder’s
Fees. Neither the Company nor any of the Subsidiaries has incurred any liability for any finder’s fees, brokerage commissions
or similar payments in connection with the transactions herein contemplated, except as may otherwise exist with respect to Agent
pursuant to this Agreement or as previously disclosed to the Agent.
(gg) Labor Disputes.
No labor disturbance by or dispute with employees of the Company or any of its Subsidiaries exists or, to the knowledge of the
Company, is threatened which would reasonably be expected to result in a Material Adverse Effect.
(hh) Investment
Company Act. Neither the Company nor any of the Subsidiaries is or, after giving effect to the offering and sale of the Placement
Shares and the application of the proceeds thereof as described in the Registration Statement and the Prospectus, will be an “investment
company” or an entity “controlled” by an “investment company,” as such terms are defined in the Investment
Company Act of 1940, as amended (the “Investment Company Act”).
(ii) Operations.
The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial
record keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions to which the Company or its Subsidiaries are subject, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively,
the “Money Laundering Laws”), except as would not reasonably be expected to result in a Material Adverse
Effect; and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving
the Company or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(jj) Off-Balance
Sheet Arrangements. There are no transactions, arrangements and other relationships between and/or among the Company, and/or,
to the knowledge of the Company, any of its affiliates and any unconsolidated entity, including, but not limited to, any structural
finance, special purpose or limited purpose entity (each, an “Off Balance Sheet Transaction”) that could
reasonably be expected to affect materially the Company’s liquidity or the availability of or requirements for its capital
resources, including those Off Balance Sheet Transactions described in the Commission’s Statement about Management’s
Discussion and Analysis of Financial Conditions and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61), required to
be described in the Prospectus which have not been described as required.
(kk) Underwriter
Agreements. The Company is not a party to any agreement with an agent or underwriter for any other “at-the-market”
or continuous equity transaction.
(ll) ERISA.
To the knowledge of the Company, each material employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed to
by the Company or any of its affiliates for employees or former employees of the Company and any of its Subsidiaries has been maintained
in material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including
but not limited to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); no prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred which would result in a material
liability to the Company with respect to any such plan excluding transactions effected pursuant to a statutory or administrative
exemption; and for each such plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated
funding deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived, and the fair market value
of the assets of each such plan (excluding for these purposes accrued but unpaid contributions) exceeds the present value of all
benefits accrued under such plan determined using reasonable actuarial assumptions.
(mm) Forward Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) (a “Forward Looking Statement”) contained in the Registration Statement and the Prospectus has been
made or reaffirmed without a reasonable basis or has been disclosed other than in good faith. The Forward Looking Statements incorporated
by reference in the Registration Statement and the Prospectus from the Company’s Annual Report on Form 20-F for the fiscal
year most recently ended (i) are within the coverage of the safe harbor for forward looking statements set forth in Section
27A of the Securities Act, Rule 175(b) under the Securities Act or Rule 3b-6 under the Exchange Act, as applicable, (ii) at
the time such Forward Looking Statements were made, were made by the Company with a reasonable basis and in good faith and reflect
the Company’s good faith commercially reasonable best estimate of the matters described therein, and (iii) have been
prepared in accordance with Item 10 of Regulation S-K under the Securities Act.
(nn) Agent Purchases.
The Company acknowledges and agrees that Agent has informed the Company that the Agent may, to the extent permitted under the Securities
Act and the Exchange Act, purchase and sell Ordinary Shares for its own account while this Agreement is in effect, provided, that
(i) no such purchase or sales shall take place while a Placement Notice is in effect (except to the extent each Agent may
engage in sales of Placement Shares purchased or deemed purchased from the Company as a “riskless principal” or in
a similar capacity) and (ii) the Company shall not be deemed to have authorized or consented to any such purchases or sales
by the Agent.
(oo) Margin Rules.
Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds thereof by the Company as described
in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve
System or any other regulation of such Board of Governors.
(pp) Insurance.
The Company and each of its Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the Company
and each of its Subsidiaries reasonably believe are adequate for the conduct of their properties and as is customary for companies
engaged in similar businesses in similar industries.
(qq) No Improper
Practices. (i) Neither the Company nor, to the Company’s knowledge, the Subsidiaries, nor to the Company’s
knowledge, any of their respective executive officers has, in the past five years, made any unlawful contributions to any candidate
for any political office (or failed fully to disclose any contribution in violation of law) or made any contribution or other payment
to any official of, or candidate for, any federal, state, municipal, or foreign office or other person charged with similar public
or quasi-public duty in violation of any law or of the character required to be disclosed in the Prospectus; (ii) no relationship,
direct or indirect, exists between or among the Company or, to the Company’s knowledge, any Subsidiary or any affiliate of
any of them, on the one hand, and the directors, officers and stockholders of the Company or, to the Company’s knowledge,
any Subsidiary, on the other hand, that is required by the Securities Act to be described in the Registration Statement and the
Prospectus that is not so described; (iii) no relationship, direct or indirect, exists between or among the Company or any
Subsidiary or any affiliate of them, on the one hand, and the directors, officers, or stockholders of the Company or, to the Company’s
knowledge, any Subsidiary, on the other hand, that is required by the rules of FINRA to be described in the Registration Statement
and the Prospectus that is not so described; (iv) except as described in the Prospectus, there are no material outstanding
loans or advances or material guarantees of indebtedness by the Company or, to the Company’s knowledge, any Subsidiary to
or for the benefit of any of their respective officers or directors or any of the members of the families of any of them; and (v)
the Company has not offered, or caused any placement agent to offer, Ordinary Shares to any person with the intent to influence
unlawfully (A) a customer or supplier of the Company or any Subsidiary to alter the customer’s or supplier’s level
or type of business with the Company or any Subsidiary or (B) a trade journalist or publication to write or publish favorable
information about the Company or any Subsidiary or any of their respective products or services, and, (vi) neither the Company
nor any Subsidiary nor, to the Company’s knowledge, any employee or agent of the Company or any Subsidiary has made any payment
of funds of the Company or any Subsidiary or received or retained any funds in violation of any law, rule or regulation (including,
without limitation, the Foreign Corrupt Practices Act of 1977), which payment, receipt or retention of funds is of a character
required to be disclosed in the Registration Statement or the Prospectus.
(rr) Status Under
the Securities Act. The Company was not and is not an ineligible issuer as defined in Rule 405 under the Securities Act at
the times specified in Rules 164 and 433 under the Securities Act in connection with the offering of the Placement Shares.
(ss) No Misstatement
or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and as of each
Applicable Time (as defined in Section 26 below), did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any incorporated
document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements
in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the
Company by the Agent specifically for use therein.
(tt) No Conflicts.
Neither the execution of this Agreement, nor the issuance, offering or sale of the Placement Shares, nor the consummation of any
of the transactions contemplated herein and therein, nor the compliance by the Company with the terms and provisions hereof and
thereof will conflict with, or will result in a breach of, any of the terms and provisions of, or has constituted or will constitute
a default under, or has resulted in or will result in the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to the terms of any contract or other agreement to which the Company may be bound or to which
any of the property or assets of the Company is subject, except (i) such conflicts, breaches or defaults as may have been waived
and (ii) such conflicts, breaches and defaults that would not have a Material Adverse Effect; nor will such action result (x) in
any violation of the provisions of the organizational or governing documents of the Company, or (y) in any material violation of
the provisions of any statute or any order, rule or regulation applicable to the Company or of any court or of any federal, state
or other regulatory authority or other government body having jurisdiction over the Company.
(uu) Sanctions.
(i) The Company represents that, neither the Company nor any of its Subsidiaries (collectively, the “Entity”)
or any director, officer, employee, agent, affiliate or representative of the Entity, is a government, individual, or entity (in
this paragraph (uu), “Person”) that is, or is owned or controlled by a Person that is:
(A) the
subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control,
the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively,
“Sanctions”), nor
(B) located,
organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Burma/Myanmar,
Cuba, Iran, North Korea, Sudan and Syria).
(ii) The
Entity represents and covenants that it will not, directly or indirectly, use the proceeds of the offering, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to
fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding
or facilitation, is the subject of Sanctions; or
(B) in
any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering,
whether as underwriter, advisor, investor or otherwise).
(iii) The
Entity represents and covenants that, except as detailed in the Registration Statement and the Prospectus, for the past 5 years,
it has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any
Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(vv) Stock Transfer
Taxes. On each Settlement Date, all stock transfer or other taxes (other than income taxes) which are required to be paid in
connection with the sale and transfer of the Placement Shares to be sold hereunder will be, or will have been, fully paid or provided
for by the Company and all laws imposing such taxes will be or will have been fully complied with.
(ww) Compliance
with Laws. Each of the Company and its Subsidiaries: (A) is and at all times has been in compliance with all statutes, rules,
or regulations applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution, marketing,
labeling, promotion, sale, offer for sale, storage, import, export or disposal of any product manufactured or distributed by the
Company or its Subsidiaries (“Applicable Laws”), except as could not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect; (B) has not received any FDA Form 483, notice of adverse finding,
warning letter, untitled letter or other correspondence or notice from the FDA or any other governmental authority alleging or
asserting noncompliance with any Applicable Laws or any licenses, certificates, approvals, clearances, authorizations, permits
and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”); (C) possesses
all material Authorizations and such Authorizations are valid and in full force and effect and are not in material violation of
any term of any such Authorizations; (D) has not received notice of any claim, action, suit, proceeding, hearing, enforcement,
investigation, arbitration or other action from any governmental authority or third party alleging that any product operation or
activity is in violation of any Applicable Laws or Authorizations and has no knowledge that any such governmental authority or
third party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; (E) has not received
notice that any governmental authority has taken, is taking or intends to take action to limit, suspend, modify or revoke any Authorizations
and has no knowledge that any such governmental authority is considering such action; (F) has filed, obtained, maintained or submitted
all material reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required
by any Applicable Laws or Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions
and supplements or amendments were complete and correct on the date filed (or were corrected or supplemented by a subsequent submission);
and (G) except as previously reported on a Form 6-K filed November 9, 2010, either voluntarily or involuntarily, initiated, conducted,
or issued or caused to be initiated, conducted or issued, any recall, market withdrawal or replacement, safety alert, post sale
warning, “dear doctor” letter, or other notice or action relating to the alleged lack of safety or efficacy of any
product or any alleged product defect or violation and, to the Company’s knowledge, no third party has initiated, conducted
or intends to initiate any such notice or action.
(xx) Israeli Qualifications.
No consent, approval, authorization or order of, or filing, qualification or registration with, any Israeli court or governmental
agency or body, which has not been made, obtained or taken and is not in full force and effect, is required for the execution,
delivery and performance of this Agreement by the Company, the offer or sale of the Placement Shares or the consummation of the
transactions contemplated hereby or thereby, other than (A) the obligation to file certain information with the Israeli Investment
Center and the OCS and (B) the filing of certain notices with the Registrar of Companies in the State of Israel regarding the issuance
of shares.
(yy) No Israeli
Prospectus. The Company is not required to publish a prospectus in the State of Israel under the laws of the State of Israel
with respect to the offer and sale of the Placement Shares in accordance with and subject to the terms of this Agreement.
(zz) No Israeli
Violations. Neither the Company nor any of its Subsidiaries is (i) in violation of any condition or requirement stipulated
(A) by any instruments of approval, granted to it by the OCS with respect to any research and development grants or benefits given
to the Company by such office or (B) with respect to any instrument of approval granted to it by the Investment Center of the Ministry
of Industry, Trade and Labor of the State of Israel (the “Investment Center”) with respect to grants
or benefits given to the Company. The Company has not received any notice denying, revoking or modifying any “approved enterprise”
or “benefited enterprise” or “preferred enterprise” status with respect to any of the Company’s facilities
or operations or with respect to any grants or benefits from the OCS or the Investment Center (collectively, “Governmental
Grants”) (including, in all such cases, notice of proceedings or investigations related thereto). No event has occurred,
and no circumstance or condition exists, that could reasonably be expected to give rise to or serve as the basis for (i) the annulment,
revocation, withdrawal, suspension, cancellation, recapture or modification of any Governmental Grants, (ii) the imposition of
any material limitation on any Governmental Grant or (iii) a requirement that the Company return or refund any benefits provided
under any Governmental Grant. All information supplied by the Company with respect to the applications or notifications relating
to such “approved enterprise” status, “privileged enterprise status” and “preferred enterprise”
status and to grants and benefits from the OCS and/or the Investment Center was true, correct and complete in all material respects
when supplied to the appropriate authorities.
(aaa) No Dissolution.
The Company is not in nor subject to a bankruptcy or insolvency proceeding in the State of Israel.
(bbb) Israeli Taxation.
Assuming that the Agent is not otherwise subject to taxation in the State of Israel, or is exempt therefrom, the issuance, delivery
and sale of the Placement Shares to be sold by the Company hereunder are not subject to any tax imposed by the State of Israel
or any political subdivision thereof.
(ccc) Israeli Employment
Laws. The Company and its Subsidiaries are in compliance in all material respects with the labor and employment laws and collective
bargaining agreements and extension orders applicable to their employees in the State of Israel.
(ddd) Israeli Securities
Laws. The Company has not engaged in any form of solicitation, advertising or any other action constituting an offer under
the Israeli Securities Law 5728-1968 as amended and the regulations promulgated thereunder (“Israeli Securities Law”)
in connection with the transactions contemplated hereby which would require the Company to publish a prospectus in the State of
Israel under the laws of the State of Israel.
(eee) No Immunity.
Neither the Company nor any of its properties or assets has any immunity from the jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of
the State of Israel.
(fff) Agent for
Service of Process. The Company has duly designated Rosetta Genomics Inc. as its authorized agent to receive service of process
as set forth in Section 19.
(ggg) Enforcement
of Judgments. Subject to the conditions and qualifications set forth in the Registration Statement and the Prospectus, a final
and conclusive judgment against the Company for a definitive sum of money entered by any court in the United States may be enforced
by an Israeli court.
(hhh) Israeli Exemptions.
Aside from investors who are specified in Section 15A(b) of the Israeli Securities Law, 5728-1968 and offers made to employees
of the Company or any subsidiary pursuant to an exemption issued by the Israeli Securities Authority pursuant to Section 15D of
the Israeli Securities Law, 5728-1968, there were no more than 35 offerees, in the aggregate, to whom the Company and any of its
respective representatives made an offering in Israel of any securities of the Company in the past twelve months.
(iii) No Manipulation.
The Company will not take, directly or indirectly, any action designed to or that would reasonably be expected to cause or result
in any stabilization or manipulation of the price of the Placement Shares in violation of applicable securities laws. In addition,
the Company will not engage in any form of solicitation, advertising or any other action which constitutes an offer to the public
under the Israeli Securities Law in connection with the transactions contemplated hereby.
(jjj) Israeli Placements.
The Company acknowledges, understands and agrees that the Placement Shares may be sold in Israel only to such Israeli investors
listed in the First Addendum to the Israeli Securities Law, 5728-1968 (the “Addendum”).
Any certificate signed
by an officer of the Company and delivered to the Agent or to counsel for the Agent pursuant to or in connection with this Agreement
shall be deemed to be a representation and warranty by the Company, as applicable, to the Agent as to the matters set forth therein.
7. Covenants
of the Company. The Company covenants and agrees with Agent that:
(a) Registration
Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any Placement
Shares is required to be delivered by Agent under the Securities Act (including in circumstances where such requirement may be
satisfied pursuant to Rule 172 under the Securities Act), (i) the Company will notify the Agent promptly of the time when
any subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been filed with the
Commission and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any request by the
Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information, (ii) the
Company will prepare and file with the Commission, promptly upon the Agent’s request, any amendments or supplements to the
Registration Statement or Prospectus that, in such Agent’s reasonable opinion, may be necessary or advisable in connection
with the distribution of the Placement Shares by the Agent (provided, however, that the failure of the Agent to make such request
shall not relieve the Company of any obligation or liability hereunder, or affect the Agent’s right to rely on the representations
and warranties made by the Company in this Agreement and provided, further, that the only remedy the Agent shall have with respect
to the failure to make such filing shall be to cease making sales under this Agreement until such amendment or supplement is filed);
(iii) the Company will not file any amendment or supplement to the Registration Statement or Prospectus relating to the Placement
Shares or a security convertible into the Placement Shares unless a copy thereof has been submitted to Agent within a reasonable
period of time before the filing and the Agent has not objected thereto (provided, however, that the failure of the Agent to make
such objection shall not relieve the Company of any obligation or liability hereunder, or affect the Agent’s right to rely
on the representations and warranties made by the Company in this Agreement and provided, further, that the only remedy Agent shall
have with respect to the failure by the Company to obtain such consent shall be to cease making sales under this Agreement) and
the Company will furnish to the Agent at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated
by reference into the Registration Statement or Prospectus, except for those documents available via EDGAR; and (iv) the Company
will cause each amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to the applicable
paragraph of Rule 424(b) of the Securities Act or, in the case of any document to be incorporated therein by reference, to be filed
with the Commission as required pursuant to the Exchange Act, within the time period prescribed (the determination to file or not
file any amendment or supplement with the Commission under this Section 7(a), based on the Company’s reasonable opinion
or reasonable objections, shall be made exclusively by the Company). Notwithstanding anything contained herein, the Company has
no obligation to provide the Agent any advanced copy of any supplement to the Prospectus if such supplement does not relate to
the Placement Shares or to the transactions contemplated by this Agreement.
(b) Notice of Commission
Stop Orders. The Company will advise the Agent, promptly after it receives notice or obtains knowledge thereof, of the issuance
or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension
of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any
proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such a stop order should be issued. The Company will advise the Agent promptly after it receives
any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus
or any Issuer Free Writing Prospectus or for additional information related to the offering of the Placement Shares or for additional
information related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus.
(c) Delivery of
Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required to be
delivered by the Agent under the Securities Act with respect to the offer and sale of the Placement Shares, (including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will comply with all requirements
imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective due dates all reports
and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act. If the Company has omitted any information from the
Registration Statement pursuant to Rule 430B under the Securities Act, it will use its best efforts to comply with the provisions
of and make all requisite filings with the Commission pursuant to said Rule 430B and to notify the Agent promptly of all such filings.
If during such period any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances
then existing, not misleading, or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus
to comply with the Securities Act, the Company will promptly notify Agent to suspend the offering of Placement Shares during such
period and the Company will promptly amend or supplement the Registration Statement or Prospectus (at the expense of the Company)
so as to correct such statement or omission or effect such compliance.
(d) Listing of
Placement Shares. During any period in which the Prospectus relating to the Placement Shares is required to be delivered by
the Agent under the Securities Act with respect to the offer and sale of the Placement Shares, the Company will use its reasonable
best efforts to cause the Placement Shares to be listed on the Exchange.
(e) Delivery of
Registration Statement and Prospectus. The Company will furnish to the Agent and its counsel (at the expense of the Company)
copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments
and supplements to the Registration Statement or Prospectus that are filed with the Commission during any period in which a Prospectus
relating to the Placement Shares is required to be delivered under the Securities Act (including all documents filed with the Commission
during such period that are deemed to be incorporated by reference therein), in each case as soon as reasonably practicable and
in such quantities as the Agent may from time to time reasonably request and, at the Agent’s request, will also furnish copies
of the Prospectus to each exchange or market on which sales of the Placement Shares may be made; provided, however, that the Company
shall not be required to furnish any document (other than the Prospectus) to the Agent to the extent such document is available
on EDGAR.
(f) Earnings Statement.
The Company will make generally available to its security holders as soon as practicable, but in any event not later than 15 months
after the end of the Company’s current fiscal quarter, an earnings statement covering a 12-month period that satisfies the
provisions of Section 11(a) and Rule 158 of the Securities Act.
(g) Use of Proceeds.
The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
(h) Notice of Other
Sales. Without the prior written consent of Agent, the Company will not, directly or indirectly, offer to sell, sell, contract
to sell, grant any option to sell or otherwise dispose of any Ordinary Shares (other than the Placement Shares offered pursuant
to this Agreement) or securities convertible into or exchangeable for Ordinary Shares, warrants or any rights to purchase or acquire,
Ordinary Shares during the period beginning on the fifth (5th) Trading Day immediately prior to the date on which any
Placement Notice is delivered to Agent hereunder and ending on the fifth (5th) Trading Day immediately following the
final Settlement Date with respect to Placement Shares sold pursuant to such Placement Notice (or, if the Placement Notice has
been terminated or suspended prior to the sale of all Placement Shares covered by a Placement Notice, the date of such suspension
or termination); and will not directly or indirectly in any other “at-the-market” or continuous equity transaction
offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Ordinary Shares (other than the Placement
Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for Ordinary Shares, warrants or any
rights to purchase or acquire, Ordinary Shares prior to the later of the termination of this Agreement and the sixtieth (60th)
day immediately following the final Settlement Date with respect to Placement Shares sold pursuant to such Placement Notice; provided,
however, that such restrictions will not be required in connection with the Company’s issuance or sale of (i) Ordinary
Shares, options to purchase Ordinary Shares or Ordinary Shares issuable upon the exercise of options, or pursuant to restricted
stock units or other stock awards under any employee, consultant or director stock option or benefits plan, stock ownership plan
or dividend reinvestment plan (but not Ordinary Shares subject to a waiver to exceed plan limits in its dividend reinvestment plan)
of the Company whether now in effect or hereafter implemented, (ii) Ordinary Shares issuable upon conversion of securities
or the exercise of warrants, options or other rights in effect or outstanding, and disclosed in filings by the Company available
on EDGAR or otherwise in writing to the Agent and (iii) Ordinary Shares or securities convertible into or exchangeable for Ordinary
Shares as consideration for mergers, acquisitions, other business combinations or strategic alliances occurring after the date
of this Agreement which are not issued for capital raising purposes.
(i) Change of Circumstances.
The Company will, at any time during the pendency of a Placement Notice advise the Agent promptly after it shall have received
notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect any opinion,
certificate, letter or other document required to be provided to the Agent pursuant to this Agreement.
(j) Due Diligence
Cooperation. The Company will cooperate with any reasonable due diligence review conducted by the Agent or its representatives
in connection with the transactions contemplated hereby, including, without limitation, providing information and making available
documents and senior corporate officers, during regular business hours and at the Company’s principal offices, as the Agent
may reasonably request.
(k) Required Filings
Relating to Placement of Placement Shares. The Company agrees that on such dates as the Securities Act shall require, the Company
will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under the Securities
Act (each and every filing under Rule 424(b), a “Filing Date”), which prospectus supplement will set
forth, within the relevant period, the amount of Placement Shares sold through the Agent, the Net Proceeds to the Company and the
compensation payable by the Company to the Agent with respect to such Placement Shares, and (ii) deliver such number of copies
of each such prospectus supplement to each exchange or market on which such sales were effected as may be required by the rules
or regulations of such exchange or market.
(l) Representation
Dates; Certificate. (1) Prior to the date of the first Placement Notice and (2) each time the Company:
(i) files the
Prospectus relating to the Placement Shares or amends or supplements (other than a prospectus supplement relating solely to an
offering of securities other than the Placement Shares) the Registration Statement or the Prospectus relating to the Placement
Shares by means of a post-effective amendment, sticker, or supplement but not by means of incorporation of documents by reference
into the Registration Statement or the Prospectus relating to the Placement Shares;
(ii) files
an annual report on Form 20-F under the Exchange Act (including any Form 20-F/A containing amended financial information or a material
amendment to the previously filed Form 20-F);
(iii) files
its quarterly or six-month reports on Form 6-K under the Exchange Act containing financial statements, supporting schedules or
other financial data incorporated by reference into the Registration Statement; or
(iv) files
a report on Form 6-K containing amended financial information under the Exchange Act incorporated by reference into the Registration
Statement (each date of filing of one or more of the documents referred to in clauses (i) through (iv) shall be a “Representation
Date”);
the Company shall furnish
the Agent (but in the case of clause (iv) above only if the Agent reasonably determines that the information contained in such
Form 6-K is material) with a certificate, in the form attached hereto as Exhibit 7(l). The requirement to provide a certificate
under this Section 7(l) shall be waived for any Representation Date occurring at a time in which no Placement Notice is
pending (including as a result of a Suspension being in effect), which waiver shall continue until the earlier to occur of the
date the Company delivers a Placement Notice or instructions for the sale of Placement Shares hereunder, as applicable, (which
for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date. Notwithstanding
the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when such waiver applied
and did not provide the Agent with a certificate under this Section 7(l), then before the Company delivers the instructions
for the sale of Placement Shares or the Agent sells any Placement Shares pursuant to such instructions, the Company shall provide
the Agent with a certificate in conformity with this Section 7(l) dated as of the date that the instructions for the sale
of Placement Shares are issued.
(m) Legal Opinions.
(1) Prior to the date of the first Placement Notice and (2) unless a Suspension is in effect, within five (5) Trading Days of each
Representation Date with respect to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit
7(l) for which no waiver is applicable and excluding the date of this Agreement, the Company shall cause to be furnished to the
Agent a written opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., U.S. counsel to the Company, and Raved Magriso
Benkel & Co, Israeli counsel to the Company (“Company Counsel”), or other counsel satisfactory to
the Agent, in form and substance substantially similar to the form attached hereto as Exhibit 7(m), modified, as necessary, to
relate to the Registration Statement and the Prospectus as then amended or supplemented; provided, however, the Company shall be
required to furnish to Agent no more than one opinion hereunder per calendar quarter; provided, further, that in lieu of such opinions
for subsequent periodic filings under the Exchange Act, counsel may furnish the Agent with a letter (a “Reliance Letter”)
to the effect that the Agent may rely on a prior opinion delivered under this Section 7(m) to the same extent as if it were
dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement
and the Prospectus as amended or supplemented as of the date of the Reliance Letter).
(n) Comfort Letter.
(1) Prior to the date of the first Placement Notice and (2) unless a Suspension is in effect, within five (5) Trading Days of each
Representation Date with respect to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit
7(l) for which no waiver is applicable and excluding the date of this Agreement, the Company shall cause its independent registered
public accounting firm to furnish the Agent letters (the “Comfort Letters”), dated the date the Comfort
Letter is delivered, which shall meet the requirements set forth in this Section 7(n); provided, that if requested by the
Agent, the Company shall cause a Comfort Letter to be furnished to the Agent within ten (10) Trading Days of the date of occurrence
of any material transaction or event, including the restatement of the Company’s financial statements. The Comfort Letter
from the Company’s independent registered public accounting firm shall be in a form and substance satisfactory to the Agent,
(i) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act and the
PCAOB, (ii) stating, as of such date, the conclusions and findings of such firm with respect to the financial information and other
matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public
offerings (the first such letter, the “Initial Comfort Letter”) and (iii) updating the Initial Comfort
Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified
as necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.
(o) Market Activities.
The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or might
reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of Ordinary Shares or (ii) sell, bid for, or purchase Ordinary Shares, or pay anyone any compensation for
soliciting purchases of the Placement Shares other than the Agent.
(p) Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor any of its
Subsidiaries will be or become, at any time prior to the termination of this Agreement, required to register as an “investment
company,” as such term is defined in the Investment Company Act.
(q) No Offer to
Sell. Other than an Issuer Free Writing Prospectus approved in advance by the Company and the Agent in its capacity as agent
hereunder, neither the Agent nor the Company (including its agents and representatives, other than the Agent in its capacity as
such) will make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule 405 under the Securities
Act), required to be filed with the Commission, that constitutes an offer to sell or solicitation of an offer to buy Placement
Shares hereunder.
(r) Blue Sky and
Other Qualifications. The Company will use its commercially reasonable efforts, in cooperation with the Agent, to qualify
the Placement Shares for offering and sale, or to obtain an exemption for the Placement Shares to be offered and sold, under the
applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Agent may designate and to maintain
such qualifications and exemptions in effect for so long as required for the distribution of the Placement Shares (but in no event
for less than one year from the date of this Agreement); provided, however, that the Company shall not be obligated
to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction
in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject. In each jurisdiction in which the Placement Shares have been so qualified or exempt, the Company will
file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption,
as the case may be, in effect for so long as required for the distribution of the Placement Shares (but in no event for less than
one year from the date of this Agreement).
(s) Sarbanes-Oxley
Act. The Company and the Subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain
internal accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and
including those policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately
and fairly reflect the transactions and dispositions of the assets of the Company, (ii) provide reasonable assurance that
transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements in accordance
with generally accepted accounting principles, (iii) that receipts and expenditures of the Company are being made only in
accordance with management’s and the Company’s directors’ authorization, and (iv) provide reasonable assurance
regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could
have a material effect on its financial statements. The Company and the Subsidiaries will maintain such controls and other procedures,
including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act, and the applicable regulations
thereunder that are designed to ensure that information required to be disclosed by the Company in the reports that it files or
submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s
rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed
by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s
management, including its principal executive officer and principal financial officer, or persons performing similar functions,
as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the
Company or the Subsidiaries is made known to them by others within those entities, particularly during the period in which such
periodic reports are being prepared.
(t) Secretary’s
Certificate; Further Documentation. Prior to the date of the first Placement Notice, the Company shall deliver to the Agent
a certificate of the Secretary of the Company and attested to by an executive officer of the Company, dated as of such date, certifying
as to (i) the Amended and Restated Articles of Association of the Company, (ii) the resolutions of the Board of Directors of the
Company authorizing the execution, delivery and performance of this Agreement and the issuance of the Placement Shares and (iii)
the incumbency of the officers duly authorized to execute this Agreement and the other documents contemplated by this Agreement.
Unless a Suspension is in effect, within five (5) Trading Days of each Representation Date, the Company shall have furnished to
the Agent such further information, certificates and documents as the Agent may reasonably request.
8. Payment of
Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including
(i) the preparation and filing of the Registration Statement, including any fees required by the Commission, and the printing
or electronic delivery of the Prospectus as originally filed and of each amendment and supplement thereto, in such number as the
Agent shall deem necessary, (ii) the printing and delivery to the Agent of this Agreement and such other documents as may be required
in connection with the offering, purchase, sale, issuance or delivery of the Placement Shares, (iii) the preparation, issuance
and delivery of the certificates, if any, for the Placement Shares to the Agent, including any stock or other transfer taxes and
any capital duties, stamp duties or other duties or taxes payable upon the sale, issuance or delivery of the Placement Shares to
the Agent, (iv) the fees and disbursements of the counsel, accountants and other advisors to the Company, (v) the fees
and disbursements of the counsel to the Agent, payable upon the execution of this Agreement, in an amount not to exceed $50,000;
(vi) the qualification or exemption of the Placement Shares under state securities laws in accordance with the provisions
of Section 7(r) hereof, including filing fees, but excluding fees of the Agent’s counsel, (vii) the printing
and delivery to the Agent of copies of any Permitted Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements
thereto in such number as the Agent shall deem necessary, (viii) the preparation, printing and delivery to the Agent of copies
of the blue sky survey, (ix) the fees and expenses of the transfer agent and registrar for the Ordinary Shares, (x) the
filing and other fees incident to any review by FINRA of the terms of the sale of the Placement Shares including the fees of the
Agent’s counsel (subject to the cap, set forth in clause (v) above), and (xi) the fees and expenses incurred in connection
with the listing of the Placement Shares on the Exchange.
9. Conditions
to Agent’s Obligations. The obligations of the Agent hereunder with respect to a Placement will be subject to the continuing
accuracy and completeness of the representations and warranties made by the Company herein, to the due performance by the Company
of its obligations hereunder, to the completion by the Agent of a due diligence review satisfactory to it in its reasonable judgment,
and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) Registration
Statement Effective. The Registration Statement shall have become effective and shall be available for the (i) resale
of all Placement Shares issued to the Agent and not yet sold by the Agent and (ii) sale of all Placement Shares contemplated to
be issued by any Placement Notice.
(b) No Material
Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request
for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness
of the Registration Statement, the response to which would require any post-effective amendments or supplements to the Registration
Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or state governmental authority of any
stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt
by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of
the Placement Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) the
occurrence of any event that makes any material statement made in the Registration Statement or the Prospectus or any material
document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making
of any changes in the Registration Statement, the Prospectus or documents so that, in the case of the Registration Statement, it
will not contain any materially untrue statement of a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any materially
untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
(c) No Misstatement
or Material Omission. Agent shall not have advised the Company that the Registration Statement or Prospectus, or any amendment
or supplement thereto, contains an untrue statement of fact that in the Agent’s reasonable opinion is material, or omits
to state a fact that in the Agent’s reasonable opinion is material and is required to be stated therein or is necessary to
make the statements therein not misleading.
(d) Material Changes.
Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, there shall not
have been any material adverse change in the authorized capital stock of the Company or any Material Adverse Effect or any development
that could reasonably be expected to cause a Material Adverse Effect, or a downgrading in or withdrawal of the rating assigned
to any of the Company’s securities (other than asset backed securities) by any rating organization or a public announcement
by any rating organization that it has under surveillance or review its rating of any of the Company’s securities (other
than asset backed securities), the effect of which, in the case of any such action by a rating organization described above, in
the reasonable judgment of the Agent (without relieving the Company of any obligation or liability it may otherwise have), is so
material as to make it impracticable or inadvisable to proceed with the offering of the Placement Shares on the terms and in the
manner contemplated in the Prospectus.
(e) Legal Opinions.
The Agent shall have received the opinions of Company Counsel required to be delivered pursuant to Section 7(m) on or before
the date on which such delivery of such opinion is required pursuant to Section 7(m).
(f) Comfort Letter.
The Agent shall have received the Comfort Letter required to be delivered pursuant to Section 7(n) on or before the date
on which such delivery of such Comfort Letter is required pursuant to Section 7(n).
(g) Representation
Certificate. The Agent shall have received the certificate required to be delivered pursuant to Section 7(l) on or before
the date on which delivery of such certificate is required pursuant to Section 7(l).
(h) No Suspension.
Trading in the Ordinary Shares shall not have been suspended on the Exchange and the Ordinary Shares shall not have been delisted
from the Exchange.
(i) Other Materials.
On each date on which the Company is required to deliver a certificate pursuant to Section 7(l), the Company shall have
furnished to the Agent such appropriate further information, opinions, certificates, letters and other as the Agent may reasonably
request. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof.
(j) Securities
Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to
the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing
by Rule 424.
(k) Approval for
Listing. The Placement Shares shall either have been approved for listing quotation on the Exchange, subject only to notice
of issuance, or the Company shall have filed an application for listing quotation of the Placement Shares on the Exchange at, or
prior to, the issuance of any Placement Notice.
(l) FINRA.
FINRA shall have raised no objection to the terms of this offering and the amount of compensation allowable or payable to the Agent
as described in the Prospectus.
(m) No Termination
Event. There shall not have occurred any event that would permit the Agent to terminate this Agreement pursuant to Section
12(a).
10. Indemnification
and Contribution.
(a) Company Indemnification.
The Company agrees to indemnify and hold harmless the Agent, its partners, members, directors, officers, employees and agents and
each person, if any, who controls the Agent within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act as follows:
(i) against any
and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto),
or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements
therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact included in any related
Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any
and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission;
provided that (subject to Section 10(d) below) any such settlement is effected with the written consent of the Company,
which consent shall not unreasonably be delayed or withheld; and
(iii) against any
and all expense whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii) above,
provided, however,
that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made solely in reliance upon and in conformity with written
information furnished to the Company by the Agent expressly for use in the Registration Statement (or any amendment thereto), or
in any related Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Agent Indemnification.
Agent agrees to indemnify and hold harmless the Company and its directors and each officer and director of the Company who signed
the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity
contained in Section 10(a), as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements
or omissions, made in the Registration Statement (or any amendments thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with information relating to the Agent and furnished to the Company in writing by the
Agent expressly for use therein. The Company hereby acknowledges that the only information that the Agent has furnished to the
Company expressly for use in the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus (or any amendment
or supplement thereto) are the statements set forth in the seventh and eighth paragraphs under the caption “Plan of Distribution”
in the Prospectus.
(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 10 will, promptly after receipt of notice
of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties
under this Section 10, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers
served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability
that it might have to any indemnified party otherwise than under this Section 10 and (ii) any liability that it may
have to any indemnified party under the foregoing provision of this Section 10 unless, and only to the extent that, such
omission results in the forfeiture of substantive rights or defenses by the indemnifying party. If any such action is brought against
any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate
in and, to the extent that it elects by delivering written notice to the indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume
the defense of the action, with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying
party to the indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified
party for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently
incurred by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel
in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the
indemnified party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those available to the indemnifying party, (3) a conflict or
potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified
party) or (4) the indemnifying party has not in fact employed counsel to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable
fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time
for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying
party promptly as they are incurred. An indemnifying party will not, in any event, be liable for any settlement of any action or
claim effected without its written consent. No indemnifying party shall, without the prior written consent of each indemnified
party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating
to the matters contemplated by this Section 10 (whether or not any indemnified party is a party thereto), unless such settlement,
compromise or consent (1) includes an unconditional release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (2) does not include a statement as to or an admission of fault, culpability
or a failure to act by or on behalf of any indemnified party.
(d) Settlement
Without Consent if Failure to Reimburse. If an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for reasonable fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 10(a)(ii) effected without its written consent if (1) such settlement
is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (2) such indemnifying
party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and
(3) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the
date of such settlement.
(e) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 10 is applicable in accordance with its terms but for any reason is held to be unavailable from
the Company or the Agent, the Company and the Agent will contribute to the total losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted, but after deducting any contribution received by the Company from persons
other than the Agent, such as persons who control the Company within the meaning of the Securities Act, officers of the Company
who signed the Registration Statement and directors of the Company, who also may be liable for contribution) to which the Company
and the Agent may be subject in such proportion as shall be appropriate to reflect the relative benefits received by the Company
on the one hand and the Agent on the other hand. The relative benefits received by the Company on the one hand and the Agent on
the other hand shall be deemed to be in the same proportion as the total net proceeds from the sale of the Placement Shares (before
deducting expenses) received by the Company bear to the total compensation received by the Agent (before deducting expenses) from
the sale of Placement Shares on behalf of the Company. If, but only if, the allocation provided by the foregoing sentence is not
permitted by applicable law, the allocation of contribution shall be made in such proportion as is appropriate to reflect not only
the relative benefits referred to in the foregoing sentence but also the relative fault of the Company, on the one hand, and the
Agent, on the other hand, with respect to the statements or omission that resulted in such loss, claim, liability, expense or damage,
or action in respect thereof, as well as any other relevant equitable considerations with respect to such offering. Such relative
fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information supplied by the Company or the Agent, the intent
of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Agent agree that it would not be just and equitable if contributions pursuant to this Section 10(e)
were to be determined by pro rata allocation or by any other method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, liability,
expense, or damage, or action in respect thereof, referred to above in this Section 10(e) shall be deemed to include, for
the purpose of this Section 10(e), any legal or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim to the extent consistent with Section 10(c) hereof. Notwithstanding
the foregoing provisions of this Section 10(e), the Agent shall not be required to contribute any amount in excess of the
commissions received by it under this Agreement and no person found guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 10(e), any person who controls a party to this Agreement within the meaning
of the Securities Act, and any officers, directors, partners, employees or agents of the Agent, will have the same rights to contribution
as that party, and each officer and director of the Company who signed the Registration Statement will have the same rights to
contribution as the Company, subject in each case to the provisions hereof. Any party entitled to contribution, promptly after
receipt of notice of commencement of any action against such party in respect of which a claim for contribution may be made under
this Section 10(e), will notify any such party or parties from whom contribution may be sought, but the omission to so notify
will not relieve that party or parties from whom contribution may be sought from any other obligation it or they may have under
this Section 10(e) except to the extent that the failure to so notify such other party materially prejudiced the substantive
rights or defenses of the party from whom contribution is sought. Except for a settlement entered into pursuant to the last sentence
of Section 10(c) hereof, no party will be liable for contribution with respect to any action or claim settled without its
written consent if such consent is required pursuant to Section 10(c) hereof.
11. Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 10 of this Agreement
and all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of
their respective dates, regardless of (i) any investigation made by or on behalf of the Agent, any controlling persons, or
the Company (or any of their respective officers, directors or controlling persons), (ii) delivery and acceptance of the Placement
Shares and payment therefor or (iii) any termination of this Agreement.
12. Termination.
(a) The Agent may
terminate this Agreement, by notice to the Company, as hereinafter specified at any time (1) if there has been, since the
time of execution of this Agreement or since the date as of which information is given in the Prospectus, any change, or any development
or event involving a prospective change, in the condition, financial or otherwise, or in the business, properties, earnings, results
of operations or prospects of the Company and its Subsidiaries considered as one enterprise, whether or not arising in the ordinary
course of business, which individually or in the aggregate, in the sole judgment of the Agent is material and adverse and makes
it impractical or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (2) if
there has occurred any material adverse change in the financial markets in the United States or the international financial markets,
any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective
change in national or international political, financial or economic conditions, in each case the effect of which is such as to
make it, in the judgment of the Agent, impracticable or inadvisable to market the Placement Shares or to enforce contracts for
the sale of the Placement Shares, (3) if trading in the Ordinary Shares has been suspended or limited by the Commission or
the Exchange, or if trading generally on the Exchange has been suspended or limited, or minimum prices for trading have been fixed
on the Exchange, (4) if any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market
shall have occurred and be continuing, (5) if a major disruption of securities settlements or clearance services in the United
States or Israel shall have occurred and be continuing, or (6) if a banking moratorium has been declared by either U.S. Federal,
New York or Israel authorities. Any such termination shall be without liability of any party to any other party except that the
provisions of Section 8 (Payment of Expenses), Section 10 (Indemnification and Contribution), Section 11 (Representations
and Agreements to Survive Delivery), Section 17 (Governing Law and Time; Waiver of Jury Trial), Section 18 (Consent
to Jurisdiction), Section 19 (Appointment of Agent for Service) and Section 20 (Judgment Currency) hereof shall remain
in full force and effect notwithstanding such termination. If the Agent elects to terminate this Agreement as provided in this
Section 12(a), the Agent shall provide the required notice as specified in Section 13 (Notices).
(b) The Company shall
have the right, by giving ten (10) days notice as hereinafter specified to terminate this Agreement in its sole discretion at any
time after the date of this Agreement. Any such termination shall be without liability of any party to any other party except that
the provisions of Section 8, Section 10, Section 11, Section 17, Section 18, Section 19
and Section 20 hereof shall remain in full force and effect notwithstanding such termination.
(c) The Agent shall
have the right, by giving ten (10) days notice as hereinafter specified to terminate this Agreement in its sole discretion at any
time after the date of this Agreement. Any such termination shall be without liability of any party to any other party except that
the provisions of Section 8, Section 10, Section 11, Section 17, Section 18, Section 19
and Section 20 hereof shall remain in full force and effect notwithstanding such termination.
(d) Unless earlier
terminated pursuant to this Section 12, this Agreement shall automatically terminate upon the issuance and sale of all of
the Placement Shares through the Agent on the terms and subject to the conditions set forth herein; provided that the provisions
of Section 8, Section 10, Section 11, Section 17, Section 18, Section 19 and Section
20 hereof shall remain in full force and effect notwithstanding such termination.
(e) This Agreement
shall remain in full force and effect unless terminated pursuant to Sections 12(a), (b), (c), or (d) above or otherwise
by mutual agreement of the parties; provided, however, that any such termination by mutual agreement shall in all cases be deemed
to provide that Section 8, Section 10, Section 11, Section 17, Section 18, Section 19
and Section 20 shall remain in full force and effect.
(f) Any termination
of this Agreement shall be effective on the date specified in such notice of termination; provided, however, that such termination
shall not be effective until the close of business on the date of receipt of such notice by the Agent or the Company, as the case
may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such Placement Shares shall
settle in accordance with the provisions of this Agreement.
13. Notices.
All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of
this Agreement shall be in writing, unless otherwise specified, and if sent to the Agent, shall be delivered to:
|
Cantor Fitzgerald & Co. |
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499 Park Avenue |
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New York, NY 10022 |
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Attention: |
Capital Markets/Jeffrey Lumby |
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Facsimile: |
(212) 307-3730 |
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with a copy to |
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Cantor Fitzgerald & Co. |
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499 Park Avenue |
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New York, NY 10022 |
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Attention: |
Stephen Merkel |
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General Counsel |
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Facsimile: |
(212) 307-3730 |
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and with a copy to: |
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Reed Smith LLP |
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599 Lexington Avenue |
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New York, NY 10022 |
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Attention: |
Daniel I. Goldberg, Esq. |
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Facsimile: |
(212) 521-5450 |
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and if to the Company, shall be delivered to: |
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Rosetta Genomics Ltd. |
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10 Plaut Street, Science Park |
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Rehovot |
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Israel |
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Attention: |
Kenneth A. Berlin, President and CEO |
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Facsimile: |
(609) 419-9009 |
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with a copy to: |
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Rosetta Genomics Ltd. |
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10 Plaut Street, Science Park |
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Rehovot |
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Israel |
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Attention: |
Oded Biran Adv., General Counsel |
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Facsimile: |
(609) 419-9009 |
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and with a copy to: |
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. |
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One Financial Center |
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Boston, Massachusetts, 02111 |
|
Attention: |
Brian P. Keane, Esq. |
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Facsimile: |
(617) 542-2241 |
Each party to this
Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new address for such
purpose. Each such notice or other communication shall be deemed given (i) when delivered personally or by verifiable facsimile
transmission (with an original to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such day is
not a Business Day, on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized
overnight courier and (iii) on the Business Day actually received if deposited in the U.S. mail (certified or registered mail,
return receipt requested, postage prepaid). For purposes of this Agreement, “Business Day” shall mean
any day on which the Exchange and commercial banks in the City of New York are open for business.
An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 13 if sent to
the electronic mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed received at
the time the party sending Electronic Notice receives verification of receipt by the receiving party. Any party receiving Electronic
Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”)
which shall be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.
14. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Agent and their respective
successors and the affiliates, controlling persons, officers and directors referred to in Section 10 hereof. References
to any of the parties contained in this Agreement shall be deemed to include the successors and permitted assigns of such party.
Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective
successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except
as expressly provided in this Agreement. Neither party may assign its rights or obligations under this Agreement without the prior
written consent of the other party; provided, however, that the Agent may assign its rights and obligations hereunder to an affiliate
thereof who is a registered broker-dealer without obtaining the Company’s consent.
15. Adjustments
for Stock Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted
to take into account any stock split, stock dividend or similar event effected with respect to the Placement Shares.
16. Entire Agreement;
Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and Placement Notices issued
pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings,
both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement nor any term hereof
may be amended except pursuant to a written instrument executed by the Company and the Agent. In the event that any one or more
of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable as
written by a court of competent jurisdiction, then such provision shall be given full force and effect to the fullest possible
extent that it is valid, legal and enforceable, and the remainder of the terms and provisions herein shall be construed as if such
invalid, illegal or unenforceable term or provision was not contained herein, but only to the extent that giving effect to such
provision and the remainder of the terms and provisions hereof shall be in accordance with the intent of the parties as reflected
in this Agreement.
17. GOVERNING
LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. EACH PARTY
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
18. CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING
IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION
CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT
IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF
PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED
MAIL, RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH
SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO
LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. To
the extent that the Company has or hereafter may acquire any immunity (on the grounds of sovereignty or otherwise) from the jurisdiction
of any court or from any legal process with respect to itself or its property, the Company irrevocably waives, to the fullest extent
permitted by law, such immunity in respect of any such suit, action or proceeding.
19. Appointment
of Agent for Service. The Company hereby irrevocably appoints Rosetta Genomics Inc., with offices at 3711 Market Street, Suite
740, Philadelphia, Pennsylvania 19104 as its agent for service of process in any suit, action or proceeding described in Section
18 and agrees that service of process in any such suit, action or proceeding may be made upon it at the office of such agent.
The Company waives, to the fullest extent permitted by law, any other requirements of or objections to personal jurisdiction with
respect thereto. The Company represents and warrants that such agent has agreed to act as the Company’s agent for service
of process, and the Company agrees to take any and all action, including the filing of any and all documents and instruments, that
may be necessary to continue such appointment in full force and effect.
20. Judgment
Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency
other than United States dollars, the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the Agent could purchase United States dollars with such
other currency in The City of New York on the Business Day preceding that on which final judgment is given. The obligation of the
Company with respect to any sum due from it to the Agent or any person controlling the Agent shall, notwithstanding any judgment
in a currency other than United States dollars, not be discharged until the first Business Day following receipt by the Agent or
any person controlling the Agent of any sum in such other currency, and only to the extent that the Agent or controlling person
may in accordance with normal banking procedures purchase United States dollars with such other currency. If the United States
dollars so purchased are less than the sum originally due to the Agent or controlling person hereunder, the Company agrees as a
separate obligation and notwithstanding any such judgment, to indemnify the Agent or controlling person against such loss. If the
United States dollars so purchased are greater than the sum originally due to the Agent or controlling person hereunder, the Agent
or controlling person agrees to pay to the Company an amount equal to the excess of the dollars so purchased over the sum originally
due to the Agent or controlling person hereunder.
21. Use of Information. The
Agent may not provide any information gained in connection with this Agreement and the transactions contemplated by this Agreement,
including due diligence, to any third party other than its legal counsel advising it on this Agreement unless expressly approved
by the Company in writing.
22. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile
or electronic transmission.
23. Effect of
Headings. The section and exhibit headings herein are for convenience only and shall not affect the construction hereof.
24. Permitted
Free Writing Prospectuses. The Company represents, warrants and agrees that, unless it obtains the prior consent of the Agent,
and the Agent represents, warrants and agrees that, unless it obtains the prior consent of the Company, it has not made and will
not make any offer relating to the Placement Shares that would constitute an Issuer Free Writing Prospectus, or that would otherwise
constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any
such free writing prospectus consented to by the Agent or by the Company, as the case may be, is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company represents and warrants that it has treated and agrees that it will treat each Permitted
Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will
comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with
the Commission where required, legending and record keeping. For the purposes of clarity, the parties hereto agree that all free
writing prospectuses, if any, listed in Exhibit 24 hereto are Permitted Free Writing Prospectuses.
25. Absence of
Fiduciary Relationship. The Company acknowledges and agrees that:
(a) the Agent is acting
solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated
by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or
any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one
hand, and the Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this
Agreement, irrespective of whether or not the Agent has advised or is advising the Company on other matters, and the Agent has
no obligation to the Company with respect to the transactions contemplated by this Agreement except the obligations expressly set
forth in this Agreement;
(b) it is capable
of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated
by this Agreement;
(c) neither the Agent
nor its affiliates have provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated
by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that
the Agent and its affiliates are engaged in a broad range of transactions which may involve interests that differ from those of
the Company and the Agent and its affiliates have no obligation to disclose such interests and transactions to the Company by virtue
of any fiduciary, advisory or agency relationship or otherwise; and
(e) it waives, to
the fullest extent permitted by law, any claims it may have against the Agent or its affiliates for breach of fiduciary duty or
alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that the Agent
and its affiliates shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of
such a fiduciary duty claim or to any person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees
or creditors of Company, other than in respect of the Agent’s obligations under this Agreement and to keep information provided
by the Company to the Agent and the Agent's counsel confidential to the extent not otherwise publicly-available.
26. Definitions.
As used in this Agreement, the following terms have the respective meanings set forth below:
“Applicable
Time” means (i) each Representation Date and (ii) the time of each sale of any Placement Shares pursuant to this
Agreement.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating
to the Placement Shares that (1) is required to be filed with the Commission by the Company, (2) is a “road show”
that is a “written communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed
with the Commission, or (3) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of
the Placement Shares or of the offering that does not reflect the final terms, in each case in the form filed or required to be
filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule
433(g) under the Securities Act.
“Rule 164,”
“Rule 172,” “Rule 405,” “Rule 415,” “Rule
424,” “Rule 424(b),” “Rule 430B,” and “Rule 433”
refer to such rules under the Securities Act.
All references in this
Agreement to financial statements and schedules and other information that is “contained,” “included” or
“stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed
to mean and include all such financial statements and schedules and other information that is incorporated by reference in the
Registration Statement or the Prospectus, as the case may be.
All references in this
Agreement to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed
to include the copy filed with the Commission pursuant to EDGAR; all references in this Agreement to any Issuer Free Writing Prospectus
(other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the Commission)
shall be deemed to include the copy thereof filed with the Commission pursuant to EDGAR; and all references in this Agreement to
“supplements” to the Prospectus shall include, without limitation, any supplements, “wrappers” or similar
materials prepared in connection with any offering, sale or private placement of any Placement Shares by the Agent outside of the
United States.
[Signature Page
Follows]
If the foregoing correctly
sets forth the understanding between the Company and the Agent, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company and the Agent.
|
Very truly yours, |
|
|
|
Rosetta
Genomics Ltd.
|
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By: |
/s/ Kenneth A. Berlin |
|
|
Name: Kenneth A. Berlin |
|
|
Title: Chief Executive Officer and President |
|
ACCEPTED as of the date first-above written: |
|
|
|
CANTOR FITZGERALD & CO.
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|
|
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By: |
/s/ Jeffrey Lumby |
|
|
Name: Jeffrey Lumby |
|
|
Title: Senior Managing Director |
Signature
Page
Rosetta
Genomics Ltd. – Sales Agreement
SCHEDULE 1
__________________________
Form of Placement Notice
__________________________
|
From: |
Rosetta Genomics Ltd. |
|
|
|
|
To: |
Cantor Fitzgerald & Co. |
|
|
Attention: [•] |
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|
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Subject: |
Placement Notice |
|
|
|
|
Date: |
[•], 2015 |
Ladies and Gentlemen:
Pursuant to the terms
and subject to the conditions contained in the Sales Agreement between Rosetta Genomics Ltd., a corporation formed under the laws
of the State of Israel (the “Company”), and Cantor Fitzgerald & Co. (“Agent”),
dated February 18, 2015, the Company hereby requests that the Agent sell up to [•] of the Company’s ordinary shares,
par value NIS 0.6 per share, at a minimum market price of $[•] per share, during the time period beginning [month, day, time]
and ending [month, day, time].
SCHEDULE 2
__________________________
Compensation
__________________________
The Company shall pay
to the Agent in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount equal to up to 5.0% of the aggregate
gross proceeds from each sale of Placement Shares.
SCHEDULE 3
__________________________
Notice Parties
__________________________
The Company
Kenneth Berlin (berlin@rosettagenomics.com)
Oded Biran (oded_bi@rosettagenomics.com)
The Agent
Jeff Lumby (jlumby@cantor.com)
Josh Feldman (jfeldman@cantor.com)
Sameer Vasudev (svasudev@cantor.com)
With copies to:
CFControlledEquityOffering@cantor.com
SCHEDULE 4
__________________________
Subsidiaries
__________________________
Rosetta Genomics Inc. – Delaware
EXHIBIT 3
Undertaking to the OCS
| To: | The Research Committee |
The Office of the Chief
Scientist
Jerusalem
Relating to projects that have been financed
by or are currently being financed by the Office of the Chief Scientist of the Ministry of Industry, Trade and Labor (the “OCS”)
_______________ [Please specify project title and OCS’ file number] and to projects of the Company (as this term is defined
below) that may be financed by the OCS in the future (the “Projects”).
Undertaking
We, the undersigned, of [Foreign investor’s
name] a company incorporated, organized and existing under the laws of _______________ and whose registered office is at _________________
(“______”), having, by an agreement dated , committed to invest in Rosetta Genomics Ltd. (the “Company”),
in exchange for [number and type of shares] ________ shares of the Company;
Recognizing that the Company’s research
and development Projects are currently, have been or will be financially supported by the Government of the State of Israel, through
the OCS under and subject to the provisions of The Encouragement of Research and Development in Industry Law 5744-1984 (the “R&D
Law”) and the regulations, rules and procedures promulgated there under;
Recognizing that the R&D Law places
strict constraints on the transfer of know-how and/or production rights, making all such transfers subject to the absolute discretion
of the OCS’ research committee (the “Research Committee”), acting in accordance with the aims of the R&D
Law and requiring that any such transfer receive the prior written approval of the Research Committee;
Hereby declare and undertake:
| 1. | To observe strictly all the requirements of the R&D Law and the regulations, rules and procedures
promulgated there under, as applied to the Company and as directed by the Research Committee, in particular those requirements
stipulated under Sections 19, 19A and 19B of the R&D Law relating to the prohibitions on the transfer of know-how and/or production
rights. |
| 2. | As a shareholder of the Company, to make all reasonable efforts that the Company shall observe
strictly all the requirements of the R&D Law and the regulations, rules and procedures promulgated there under, as applied
to the Company and as directed by the Research Committee, in particular those requirements stipulated under Sections 19, 19A and
19B of the R&D Law relating to the prohibitions on the transfer of know-how and/or production rights. |
|
|
|
Date |
|
Name (block letters) and signature of Authorized Company Representative and Company Seal |
EXHIBIT 7(l)
Form of Representation
Date Certificate
The undersigned, the duly qualified and
elected [•], of Rosetta Genomics Ltd., a corporation formed under the laws of the State of Israel (the “Company”),
does hereby certify in such capacity and on behalf of the Company, pursuant to Section 7(l) of the Sales Agreement,
dated February 18, 2015 (the “Sales Agreement”), between the Company and Cantor Fitzgerald & Co., that
to the best of the knowledge of the undersigned:
(i) The representations and warranties
of the Company in Section 6 of the Sales Agreement (A) to the extent such representations and warranties are subject
to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, are true and correct on
and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations
and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent
such representations and warranties are not subject to any qualifications or exceptions, are true and correct in all material respects
as of the date hereof as if made on and as of the date hereof with the same force and effect as if expressly made on and as of
the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and
correct as of such date; and
(ii) The Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the Sales Agreement at or prior to
the date hereof.
|
Rosetta Genomics Ltd. |
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By: |
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Name: |
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Title: |
|
Date: [•]
Exhibit 24
Permitted Free Writing
Prospectus
None.
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